Re: Hosta 'Cathy's Clown'
- Subject: Re: Hosta 'Cathy's Clown'
- From: &* S* <t*@breathe.com>
- Date: Wed, 21 Jul 2004 05:09:17 +0100
Hi Chick
I saw your plant fleetingly in Des Moines as it left the Hilltop area AND I
WANT ONE!
Tim OTP
----- Original Message -----
From: "Bill Meyer" <njhosta@hotmail.com>
To: <hosta-open@hort.net>
Sent: Wednesday, July 21, 2004 3:24 AM
Subject: Re: Hosta 'Cathy's Clown'
> Hi Chick,
> I'm coming into this a little late, but my sympathies are with you
on
> this. It was certainly your property ethically, but the legal question
seems
> to be a little foggy. There have been numerous incidents of TC labs (won't
> say who, but not all of them) that propagated the contracted-for amount,
> then continued propagating beyond that. Some have seemed to feel that is
> legally their right if it was not spelled out specifically in the
contract.
> This seems ridiculously unethical to me, but it may be fair game from a
> legal standpoint. I don't know. My question is this - Did you each sign a
> contract that all material of 'Cathy's Clown' was your property and that
it
> was all to be returned to you?
> If you did, then it is clear they are in violation of their
contract
> with you and open to legal action. I don't think anyone would fault you
for
> suing them for lost earnings. I certainly wouldn't. It is clear that they
> have impacted your earnings from the plant. If you did not have all this
> spelled out correctly in a contract, you may have no legal recourse. The
> laws probably vary on this, and I'm no expert on them. This has been the
> case in many previous situations. Hybridizers have contracted for
> propagation with labs by simple verbal contract and never put together a
> written and signed document. I guess we want to believe that the people we
> know are honest and trustworthy, but our motto should be the old saying
> "Trust everyone but cut the cards".
> That all said, there still could have been an accident such as
> workers at the lab accidentally shipping Hilltop the wrong plant as part
of
> their order. This might be the case if no one else was shipped the plant
and
> it is not listed on the labs' wholesale list. If they are openly offering
it
> to retailers, I guess there isn't much question of their guilt in this. I
> would appreciate knowing who the lab is so I can avoid dealing with them
in
> the future. Please let me know privately if you don't want to say here.
> Hilltop was not a vendor at First Look this year or any other.
They
> were at the Convention in Iowa, but I didn't see your plant there. I know
> the Cross family, and I'm sure they wouldn't knowingly be selling stolen
> plants. Cathy's Clown was never in any of our auctions, and I don't think
it
> was in an AHS auction either. I think I know which plant it is.
>
..........Bill
> Meyer
>
>
>
> > 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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