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RE: [Aroid-l] Trademark Names/Aroid book

  • Subject: RE: [Aroid-l] Trademark Names/Aroid book
  • From: "Wilbert Hetterscheid" <hetter@xs4all.nl>
  • Date: Sun, 3 Dec 2006 09:08:59 +0100
  • Thread-index: AccWiWQnNYi6g5PuTM2vMUwk5+wKbAAI7rmA

I guess I might add a few words to this discussion, as co-author of the nomenclature code for cultivated plants.
 
A most important thing to understand is that plant patents basically grant ownership of material, i.e. true plants and planting materials, propagation materials etc. Trade marks are designations primarily to indicate origin of products in terms of companies. This is the ideal world: a new cultivar becomes patented and the cultivar name is entered in an official register of patented plants. In the trade it is required that every party uses that cultivar name. Because of this requirement, it is principally impossible that the part of the cultivar name that identifies the cultivar (e.g. 'Beauty' in Begonia 'Beauty') is at the same time owned by a single party as a trade mark for the same kind of products (plants in this case). The impossibility lies in the fact that a trade mark owner can prohibit the use of his trade mark by third parties. So this would mean that a trade marked cultivar epithet (the name part between de quotation marks in a full cultivar name) can only be used under restricted circumstances, the restrictions set by the trade mark owner, whereas the FUNDAMENTAL function of a cultivar epithet is to identify a particular cultivar all over the world, WITHOUT any restriction of its use in any part of the world. In fact this is the general function of a cultivar epithet, be that in a patented or a non patented cultivar. One must be able to write, talk etc. about a cultivar all over the world and therefore it must have a universally applicable, free name.
 
Adding a trade mark to a cultivar name is o.k. but it must never take its place. 
 
Of course, the world is not ideal and therefore a multitude of situations exists where cultivar naming and trade mark ownership clash. Many breeders have chosen to give their new cultivars epithets that have no meaning in a language and are therefore hard to memorize by people. Instead they add to the epithet a well-sounding easy-to-remember trade mark and thus invite people to memorise the trade mark and forget about the cultivar name. This has, to their minds, advantages in at least two situations:
 
1) in quite some plant genera many many cultivar epithets have been proposed and accepted in registers over the years and it becomes increasingly difficult to add to that yet another new name that also has a great commercial attractiveness. This claim is heard very often but is also criticised for being an excuse of those without imagination. A way out would be to allow the re-use of cultivar epithets in a genus under strict regulations. This is what is being explored momentarily by statutory registration (plant breeder's right / plant patent). It is already in use by European Plant Breeder's Right. However, UPOV (the organisation that is responsable for Plant Breeders' Rights worldwide) has accepted that cultivar epitthets may be given in the form of a code. This effectively frustrates the attitude towards introduction of re-use of cultivar epithets. An unfortunate decision for those who promote the use of epithets with a linguistic meaning.
 
2) in many countries where patent law hardly exists or is badly enforced, patented cultivars are illegally propagated. Breeders of patented cultivars try to get their trade marks used as indicators of a cultivar, or stated differently (as under 1) they try to "replace" the cultivar name by the trade mark in the heads of consumers, traders etc. Once a cultivar becomes popular and the trade mark with it, illegal propagators will have to use the trade mark when they want to get money out of their illegal actions because under any other designation, the cultivar would not sell that well. However, since a trade mark is owned by someone (often the breeder) it is an extra illegal act to use that trade mark without the consent of the trade mark owner. In using also that trade mark illegally, the illegal propagator commits yet another crime. Also if he uses the trade mark, the material is easily tracked down by the trade mark owner and he can stop materials being imported into the countries where the trade mark is registered. So this provides an extra way of trying to avoid succesfull trading in illegally propagated material. 
 
All in all, the best way to co-exist would be to use both cultivar name and trade mark in trading. Trade marks are basically o.k. as long as they don't interfere with the free use of cultivar names. Pity is that trade mark use has become more important to many breeders than carefully thinking of "suitable" cultivar names.
 
Wilbert
 
  


Van: aroid-l-bounces@gizmoworks.com [mailto:aroid-l-bounces@gizmoworks.com] Namens Tony Avent
Verzonden: zondag 3 december 2006 0:07
Aan: Discussion of aroids
Onderwerp: Re: [Aroid-l] Trademark Names/Aroid book

Denis:

No government allows the protection of a plant name...this would be in direct contradiction to the International Nomenclature Code.  The only way to protect a plant in any manner is with a US Patent of PBR in other countries.  Trademark law is also very simple if people would take time to read it.  Product names cannot be trademarked...never!  Trademarks are used to designate origin only...a trademark is an adjective...never a noun.  A cultivar name is also unique within a genus an cannot be applied to a different cultivar.
Tony Avent
Plant Delights Nursery @
Juniper Level Botanic Garden
9241 Sauls Road
Raleigh, North Carolina  27603  USA
Minimum Winter Temps 0-5 F
Maximum Summer Temps 95-105F
USDA Hardiness Zone 7b
email tony@plantdelights.com
website  http://www.plantdelights.com
phone 919 772-4794
fax  919 772-4752
"I consider every plant hardy until I have killed it myself...at least three times" - Avent


Denis Rotolante wrote:
Tony:
 
How can a plant tissue culture lab such as Oglesby Plants International protect the name of a patented plant such as Spathiphyllum Supreme if they do not trademark the name in addition to patenting the cultivar?  If not, another lab could theoretically call their own spathiphyllum cultivar "supreme" and propagate that clone without infringing on Oglesby's Patented Cultivar. Labs have to have a way to protect proprietary products and a name that they have spent many dollars to advertise in trade journals and trade shows.
 
Denis
Silver Krome Gardens
 
 
-----Original Message-----
From: aroid-l-bounces@gizmoworks.com [mailto:aroid-l-bounces@gizmoworks.com] On Behalf Of Tony Avent
Sent: Wednesday, November 29, 2006 9:06 AM
To: Discussion of aroids
Subject: Re: [Aroid-l] Trademark Names/Aroid book

Steve:

There are plenty of nurseries that put trademarks on all new plants that they carry.  That doesn't mean that the trademarks are valid.  Unfortunately, 99.9% of all trademarks used in horticulture are illegally used and therefore unenforcable.  If more people would tell these nurseries where to stick their trademarks, we could get this problem stopped quickly.  Re: Derek's comments, Plant can be patented under a cultivar name, since this doesn't affect the names usage.  Patents only affect propagation.  Trademarks affect name usage and this is why cultivar names cannot be trademarked.

Tony Avent
Plant Delights Nursery @
Juniper Level Botanic Garden
9241 Sauls Road
Raleigh, North Carolina  27603  USA
Minimum Winter Temps 0-5 F
Maximum Summer Temps 95-105F
USDA Hardiness Zone 7b
email tony@plantdelights.com
website  http://www.plantdelights.com
phone 919 772-4794
fax  919 772-4752
"I consider every plant hardy until I have killed it myself...at least three times" - Avent


Steve Lucas Exotic Rainforest wrote:
Can't argue that Xanadu may be trademarked but it is also a scientific name.  You can find it on TROPICOS.  I'm not sure how anyone can trademark a scientific name.
 
Philodendron xanadu Croat, Mayo & J. Boos
 
Steve Lucas
----- Original Message -----
Sent: Tuesday, November 28, 2006 5:17 AM
Subject: Re: [Aroid-l] Trademark Names/Aroid book



>From : Agoston Janos <agoston.janos@citromail.hu>
Reply-To : Discussion of aroids <aroid-l@gizmoworks.com>
Sent : Monday, November 27, 2006 9:29 AM
To : Discussion of aroids <aroid-l@gizmoworks.com>
Subject : Re: [Aroid-l] Trademark Names




Dear Jani,

I believe that Philodendron 'Xanadu" is trademarked and carefully
'protected', at least here in Florida.   I believe there is also some sort
of 'patent' on at least one vining Philodendron, the one w/ varigated leaves
(white, scarlet, green) and which 'bleeds' a wine-colored sap when cut.
Concerning Deni Bown`s book on Aroids, I recomend it MOST highly, it
contains a wealth of invaluable information all compiled in one source, and
makes for good reading also.   In our world of Aroids there is nothing else
that even comes close.   It is worth getting no matter what the price may
be.

Good Growing,

Julius

>>Are there any other aroids which are trademarked (excluding Anthuriums and
>>Zantedeschias)?

Does anybody has experience with Timber Press? Any opinions about the Aroid
book (anybody can respond...)?

Bye,

Jani


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