Re: TM vs USPP#

**G* R* <g*@tiscali.co.uk>**

John is right...

And here is a summary, from the Introductory 
pages of the latest RHS PlantFinder, which sums 
up the sitation in relation to Trade 
Designations, often referred to as "selling 
names". I've added the note on translations of 
cultivar names, as this is also of interest to 
garden writers.

It should be noted that the "propagation 
prohibited" statements appearing on tags seem to 
be changing from "Propagation for sale 
prohibited" to "Propagation prohibited". I'm not 
sure that the latter point can be enforced as 
this would prevent gardeners splitting a 
perennial in two!

A plant that is sold under a trademarked name can 
also be sold under its cultivar name (without the 
TM name). A PBR plant cannot be propagated 
without a license, but when the PBR on a plant 
runs out (as it has done on some excellent 
Alstroemeria hybrids - NB Chris?) then anyone can 
propagate and sell it.

BTW I think this discussion has a definite place 
on this mailing list, as garden writers 
(especially those with no formal botanical or 
horticultural background) may be unaware of the 
international rules which govern all this.

TRADE DESIGNATIONS
A trade designation is the name used to market a
plant when the cultivar name is considered unsuitable
for selling purposes. It is styled in a different
typeface and without single quotation marks.
In the case of Plant Breeders' Rights it is a
legal requirement for the cultivar name to appear
with the trade designation on a label at the point
of sale. Most plants are sold under only one trade
designation, but some, especially roses, are sold
under a number of names, particularly when
cultivars are introduced from other countries.
Usually, the correct cultivar name is the only way
to ensure that the same plant is not bought
unwittingly under two or more different trade
designations. The RHS Plant Finder follows the
recommendations of the ICNCP when dealing
with trade designations and PBR. These are always
to quote the cultivar name and trade designation
together and to style the trade designation in a
different typeface, without single quotation marks.

TRANSLATIONS
When a cultivar name is translated from the
language of first publication, the translation is
regarded as a trade designation and styled
accordingly. We endeavour to recognise the original
cultivar name in every case and to give an English
translation where it is in general use.

[This material is ©RHS, but as they are keen to 
have accurate summaries of the situation widely 
disseminated, I'm sure they'll have no objection 
to my posting it here.]

Graham Rice
http://transatlanticplantsman.typepad.com

>As I understand it, yes: A trademark protects a 
>name or brand; only a plant patent, or a 
>voluntary agreement, can protect a plant. The 
>"propagation prohibited" statement on a 
>non-patented plant has no teeth unless there is 
>a clause that says something like, By purchasing 
>this plant you agree that you will not reproduce 
>it asexually.
>>From a grower's viewpoint, a trademarked name 
>>on a patented plant is the belt-and-suspenders 
>>approach. The patent is good for 20 years; a 
>>trademark, if policed, is good forever. So 
>>after the patent runs out, if the plant is 
>>still marketable, anyone can propagate it BUT 
>>they still can't sell it by its TM'd name 
>>without permission to use that name. This is 
>>not the only reason to patent a cultivar under 
>>a name that can't even be pronounced, but it's 
>>a good one.
>
>
>
>
>I'm not sure if I should ask this question since it's not specifically
>GWL-related, but I haven't had luck on other lists and we have an expert
>here...  :)
>
>I've noticed that several Proven Winners plants do not have a plant
>patent number or PPAF on the tags or by their names, but they *do* have
>a trademark on the name.  The case I'm specifically interested in is
>Symphoricarpos x doorenbosii 'Kordes' (Amethyst [TM]). 
>
>Despite not having a patent designation listed, the tags all say
>'Propagation prohibited without a license'.  This isn't enforceable,
>right?  The only restriction should be on redistribution with the
>trademarked name, but reselling as 'Kordes' seems like a valid use
>since there is no patent or patent application on the plant.
>
>Does anyone know where I can get a straight answer on this?
>
>
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