Re: Hosta 'Cathy's Clown'
- Subject: Re: Hosta 'Cathy's Clown'
- From: &* S* <t*@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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