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Re: Hosta 'Cathy's Clown'

  • Subject: Re: Hosta 'Cathy's Clown'
  • From: "Tim Saville" <timsaville@breathe.com>
  • Date: Wed, 21 Jul 2004 06:09:27 +0100

Chick you are more than welcome, but I will pay you for the plant whatever
it is called and we can negotiate on the rest! No friends though 'cos I keep
digging up their hosta!
Tim
----- Original Message ----- 
From: "Chick" <chick@bridgewoodgardens.com>
To: <hosta-open@hort.net>
Sent: Wednesday, July 21, 2004 5:33 AM
Subject: 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?
>
> Chick
>
> Tim Saville wrote:
>
>   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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