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Re: Hosta 'Cathy's Clown'

 Hey Tim.

My wife and I would like to visit England sometime soon.  If I bring you
a plant of 'Cathy's Clown' in my carry-on can we stay in your house for
10 days or so and eat all your food and use your car to drive all over
your quaint little country?  If we wanted to spend a few nights away from
your house do you have any friends we could stay with?  Or maybe in
Ireland.  Is there a ferry so we could take your car to Ireland?


Tim Saville wrote:

  Hi Chick
  I saw your plant fleetingly in Des Moines as it left the Hilltop area AND I
  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


    this. It was certainly your property ethically, but the legal question


    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


    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


    was all to be returned to you?
           If you did, then it is clear they are in violation of their


    with you and open to legal action. I don't think anyone would fault you


    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


    their order. This might be the case if no one else was shipped the plant


    it is not listed on the labs' wholesale list. If they are openly offering


    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


    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.


    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


    was in an AHS auction either. I think I know which plant it is.



      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


      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,


      sorry, more bull shit. I am not stupid and I don't go around making


      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


      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


      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
      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


      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.
      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
        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
          michael shelton wrote:
            Chick there are some ways to protect your real and
            intellectual property and you already know what
            are but your unwilling to jump through the hoops.
            you want it to work the way you want it to work.
            take this as unsympathetic but all this discussion
            to nothing unless you follow the legal remedies to
            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
            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
            'Cathy's Clown" and sell a plant called 'Cathy
            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
            availed yourself of them yet you want to gripe.
            beware, seller beware, owner beware. Housewares is
            where the money is. I have a houseware I call a
            great little invention. You can cut bread, meat,
            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
              The plant is what's
              Don't get me started on names and registration.
              Chick, register it quick!
              When we were at Wade Gardens a couple of weeks
              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
              the mother plant.  But he
              gave her one as a gift, we can call it
              as he is going to rename the
              original plant.  The plant that she receive is
              beautiful, but this just
              complicates things so much!  Not a chance of
              a piece of the original
              Chick, NOW, I am going to have to go to one of
              music websites to listen
              to Cathy's Clown-Herman's Hermits?  I want to
              it but the words won't
              come to me, nah, Gary Lewis?  The Everly
              Never mind, I will just hum
              the Herman Hermits ditty!
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