Re: Hosta 'Cathy's Clown'

I appreciate your sympathy Mary, especially since I know we don't always agree on that "right and wrong" thing.

Butch apparently feels that I'm accusing people of misdeeds, when I tried to make it clear that I don't blame anyone for this except the person who purposfully sold plants they knew were not for sale. I know who did it, and since none of you know, I think it's clear that I haven't accused anyone, fairly or unfairly.

The whole point is that nobody can be blamed for buying, selling, trading, or whatever if they don't know that the plant was stolen. It's up to me to make sure that it's known. How'm I doin'?

Chick

Mary Chastain wrote:

Chick, unless a person has had a plant taken without permission they may not
understand just how violated the hybridizers feels. I understand very well.
It has happened to me too many times. I have found TC of my plants on sale
on Ebay. These plants had never been given away or sold.  I did not place
the plant in TC yet others are selling it. Over the past 10 years I have
lost thousands of dollars worth of plants. On two occasions I had new
introductions ready for release when everything was taken except the display
plants in the garden. At one time I lost 75 plants at a value of 75.00 each.
To me this all goes back to some things that were being discussed in the
spring. Right is right and wrong is wrong and no amount of excuses will make
it better. I am sorry about your plant. I also feel that some need to
examine their attitudes of right and wrong.
Mary

-----Original Message-----
From: owner-hosta-open@hort.net [o*@hort.net]On
Behalf Of Chick
Sent: Tuesday, July 20, 2004 6:43 PM
To: hosta-open@hort.net
Subject: Re: Hosta 'Cathy's Clown'


I'm sorry, but apparently I'm not making myself clear.  I don't care
about the name.  I recognized in my first post that if you don't register
the name and someone else uses it, that's just your tough luck.  It's
happened to me many times and that's just the way it goes. I've been
around long enough to know that you don't freak out just because someone
sells a plant with a name you wanted to use. So let's get past your
theory that someone just happened to use the same name on their plant.
Your statement that the whole area of ownership is very difficult is, I'm
sorry, more bull shit. I am not stupid and I don't go around making these
kind of accusations without knowing what I'm talking about. I guess you
could toss it off as just circumstantial evidence, but the plant looks
exactly like my plant named 'Cathy's Clown', happened by coincidence to
be labeled 'Cathy's Clown', and was obtained by him at the lab where I
was having my 'Cathy's Clown' tissue cultured.  Granted, it's not a
slam-dunk, but as far as circumstantial evidence goes, we've invaded
countries on less.  I do however, appreciate your sympathy. .

I recognize your sympathy for Oscar at Hillside also, and your fear that
he is being maligned.  That's why I put in my first post on the subject
that I had spoken to him, did not hold him responsible for any
wrongdoing, and mentioned that he was going to stop selling it now that
he knows that it has not been released.  Yes, Michael, I know it's my
plant. Oscar knows it's my plant. I know where it came from.  I know how
it happened. And I'm not naming names to reassure you that I know what
I'm talking about because I can't prove anything.  And the reason I used
Hillside's name on the internet is because Hillside sold the plant.  I
wanted the people who bought it to know what was going on.  Oscar has
enough integrity to know that what happened is not right and knows that
he shouldn't continue to sell the plant now that he knows it wasn't
released.  My expectation was that the people who bought the plant would
feel the same way.  What I don't understand is your making it your cause
to justify something that can't be justified.

I am not against patenting plants.  We have had this discussion on the
forum many times.  But you are also wrong in stating that patenting is
the only way to protect a plant. My guess is that you have never patented
a plant, though I must admit that like you I am making assumptions
without any knowledge of the facts.  Not all plants deserve patenting,
and not all plants qualify for a patent. Far more plants are introduced
that are not patented than those that are.  It's not because we're all
stupid.  People, including myself, make money from unpatented plants
every day. Most of Solberg's plants are not patented. Most of Tony
Avent's plants are not patented.  None of my plants are patented. Very
few of us patent plants.  Do you think we are all stupid?  Only plants
that are going to sell in large volume justify the time and expense of
patenting.  You can make money on unpatented plants simply by controlling
their distribution long enough to make your reasonable profit with the
recognition that if the plant is good enough, it will in time be widely
propagated.  I have done this quite successfully with 'Satisfaction',
'Sergeant Pepper' and 'Surfer Girl' without difficulty.  The difference
is, I decided when and to whom the plants were sold for long enough to
make my profit because nobody stole the plants from the lab and released
the plant before I did. Patent or no, if somebody sells something that
they stole from you, your ability to make a profit on the transaction is
severely limited.   Your statement that you have no control over the
plant once it leaves the lab makes me wonder whether you understand what
I'm saying.  IT WASN'T SUPPOSED TO LEAVE THE LAB.  EVERY SINGLE EXISTING
PLANT OF 'CATHY'S CLOWN' IN THE ENTIRE WORLD BELONGED TO ME OR WAS GIVEN
(NOT SOLD)  TO SOMEONE WITH THE EXPRESS AGREEMENT THAT IT WAS NOT TO BE
GIVEN TO ANY ONE WITHOUT MY PERMISSION.  NOBODY HAD ANY RIGHT TO TAKE IT
FROM THE LAB BUT ME.  If you don't understand this point, then I'm
wasting my time talking to you.  I'm sorry, but it seems so simple to me.

As a theoretical mind game, if someone else had named a different plant
'Cathy's Clown' and I got all bent out of shape because I didn't have
enough sense to make sure of the facts, I would agree that I would be
stupid and you would be right. But as I have explained, that is not what
happened.  Trust me.

As to you're suggestion that a copyright might have kept the plant
protected, I would suggest that you read an excellent article by Tony
Avent on copyrighting plant names,
http://www.plantdelights.com/Tony/trademark.html to understand why no
hosta names have been copyrighted in many years.

Chick

michael shelton wrote:

 I want to go back and see if I can understand what you
 couldn't disagree with me more on.

Was when i said that i was not unsympathetic.

 Was it that a patent is the only way that you can
 protect your intellectual property or that a copyright
 is a way to protect a name.

 Have you established that the plant that hillside sold
 is in fact a piece of your 'Cathy's Clown' or one of
 the plantlets from the lab that did the tissue
 culture. If not then they may have used the name you
 wanted (and I think you have a right to it) but not
 your plant and in that case they have not sold stolen
 property. This is a question?????

 You have published (the internet publishes our words
 for all to see) and involved hillside in the selling
 of stolen property (however they received it). Maybe I
 missed it but have you proved that the plant or plants
 (not the name, thats another matter) they sold are
 actually or ever were yours.

I repeat "I am not unsympathetic with your problem".

 This whole area of ownership of plants is very
 difficult and the only way i can see anyone benefiting
 from their work is to patent a plant. Then the only
 thing you can realistically control is the patent
 payment attached to the purchase from a lab. Once it
 leaves the lab you have very little control and could
 not control the reproduction without a lot of legal
 expense.

 The reason i did not and still do not like the
 original post is that you use someone's name
 (hillside) on the internet.

 Now the bullshit question. I confess I did not invent
 the knife. My brother did. Since he didn't patent it
 or copyright the name I stole it.

--- Chick <chick@bridgewoodgardens.com> wrote:

    I'm sorry, but I couldn't disagree with you more.
   I think you miss the
   point. Patenting has nothing to do with the issue.
   If the plant had been
   patented it would not have changed the sequence of
   events or my complaint
   in any manner. This is my plant and whoever got the
   plant from me did so
   without my permission.  That's called theft. I'm not
   accusing Hilltop of
   theft, or anyone who bought it from Hilltop, but
   somewhere in the past
   you have to get to the person who first got the
   plant without my
   permission and that is theft.  Someone knew they
   were taking a plant they
   did not have any right to. I don't care how may
   people bought it,
   eventually in the provinence of the plant you have
   to get back to someone
   who did not buy it because I owned it and I didn't
   sell it to them.  The
   fact that the plant exists does not mean that you
   can have it if you want
   it.  Every plant of 'Cathy's Clown' in the world
   belonged to me, and I
   did not sell it to anyone, so how did the person
   that first obtained the
   plant get it.  I specifically stated that I do not
   blame the people who
   bought the plant unknowingly, but if you buy stolen
   merchandise, that
   does not change the fact that what you bought was
   stolen.  I do not know
   who stole it, or from where, but I do know it was my
   plant and I did not
   authorize anyone to distribute it.  Patenting has
   nothing to do with the
   issue.  The only legal remedy in this case would be
   prosecution for
   theft, which is a bit far-fetched, even if I knew
   who took it and could
   prove it.  Now you are telling me I have no right to
   gripe unless I
   prosecute the thief. Excuse my language but I can't
   think of a better
   response than bull shit.

   My grip has plenty of weight, unless you think it's
   ok for me to come
   into your garden and take what I please, or come
   into your lab uninvited
   and steal your knife before you decide you're ready
   to sell it and get
   rich.  And if I come to steal your plants, I don't
   really care if they're
   patented.

Chick

michael shelton wrote:

     Chick there are some ways to protect your real and
     intellectual property and you already know what
   they
     are but your unwilling to jump through the hoops.
   Yet,
     you want it to work the way you want it to work.
   Don't
     take this as unsympathetic but all this discussion
   leads
     to nothing unless you follow the legal remedies to
   get
     what you want.

     There is 1 way to keep control of the plant which
   is a
     patent. The other way is a trademark which may
   help
     you keep control of the name.

     Your gripe has no weight except to throw dirt on
     someone who has done nothing but buy a plant
   called
     'Cathy's Clown" and sell a plant called 'Cathy
   Clown'.
     You have not established any ownership in the
   plant or
     the name that they sold nor do you have any legal
     rights to the plant they have (whatever it is).

     There are laws to protect your rights and you
   haven't
     availed yourself of them yet you want to gripe.
   Buyer
     beware, seller beware, owner beware. Housewares is
     where the money is. I have a houseware I call a
   knife,
     great little invention. You can cut bread, meat,
   your
     finger. As soon as i get it out of the lab I'll be
     rich. If someone tries to sell you something
   called a
     knife, don't buy it its my mine.

--- NardaA@aol.com wrote:

       In a message dated 7/20/2004 11:50:28 AM Eastern
       Standard Time,         chick@bridgewoodgardens.com
     writes:
       Until I publish the name or register the plant,
       there is nothing to stop
       you.  The name is not what I'm trying to
   protect.
       The plant is what's
       important.

Don't get me started on names and registration.

Chick, register it quick!

       When we were at Wade Gardens a couple of weeks
   ago
       my Daughter saw
       "Spellbound" in the garden so she put it on her
       list.  When she asked Van about it he
       said that it did not come back from TC looking
   like
       the mother plant.  But he
       gave her one as a gift, we can call it
   "Spellbound"
       as he is going to rename the
       original plant.  The plant that she receive is
   very
       beautiful, but this just
       complicates things so much!  Not a chance of
   getting
       a piece of the original
       plant.

       Chick, NOW, I am going to have to go to one of
   those
       music websites to listen
       to Cathy's Clown-Herman's Hermits?  I want to
   sing
       it but the words won't
       come to me, nah, Gary Lewis?  The Everly
   Brothers?
       Never mind, I will just hum
       the Herman Hermits ditty!

Narda

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