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Re: Hosta 'Cathy's Clown'

 Bill Meyer wrote:

  Hi Chick,
         Actually I think you said two different things happened:
  1. he bought the plant at an auction, but unfortunately does not remember
  any details

If you think about it Bill, these two are not mutually exclusive.  I
never implied that Oscar stole the plant from the lab.  We are talking
about two different people and two different transactions.  The plant was
put in the lab about three years ago and it was perfectly possible for
the plant to be taken from the lab, passed through several hands and wind
up in an auction. I'm not as suspicious as you, so I took Oscar at his
word. If you keep looking for flaws in my story, you may eventually find
one, so to make your life simpler, I'll give you one for free.

As it happens,, Oscar called me after I wrote the initial post and said
that he had been mistaken when he told me he bought the plant at auction.
The plant he bought was actually 'Bo Bo the Clown'.  He later remembered
that he bought a six pack of 'Cathy's Clown' at a different time when he
visited the lab.  That may alter the details of the story, but it doesn't
make a substantive difference unless you're looking for nits.

I guess you're right about the legal implications though.  I should
probably call the District Attorney and swear out a warrant for stealing
a six pack of hostas, but I don't have time today.

All this talk of legal recourse and such is rather silly.  I am obviously
not going to pursue this through the courts.  The person who took the
plants is known.  They have been fired. I don't blame any one else and
that part of the problem is over. It doesn't matter who it was, they are
gone.  My point in writing is simply this.  These plants shouldn't have
left the lab but they did.  My hope is that the people who have them now
will do the right thing and not let them go any farther.  I'm not asking
for them back, I just want the people who have the plants to know that
what they have is not 'Cathy's Clown'. I don't know how to resolve this
problem now. I think the best thing is for the three people who bought
the plant to keep it, enjoy it, and be aware of the issues with the name.
If that's not possible, so be it, I can't change what's done. I don't
give a damn about legalities concerning the name.  If someone wants to
take the name because I'm not ready to register the plant, that's a
decision for then to make. It's a good name and if I don't release the
plant, I might put the name on another plant if someone else hasn't
already taken it. If the plant hadn't been taken from the lab, that would
not cause anyone a problem.  I know that the rules permit anyone to take
the name until I make it official, I'm simply saying that if you know
what happened and market the plant anyway, or take the name and use it,
knowing that I have already put it on a plant, then I will be unhappy. 
I'm not sure that's going to be a big deterrent to everyone, but if I
don't publicize the problem then I have no gripe if it happens.

As to the plant.  'Cathy's Clown' is a sport of a seedling of mine. It is
very different from other plants I have seen in that it is very dark
green, with a bright white center with dark green speckles.  Mostly it is
different from other similarly marked plants like 'Revolution' because it
is darker and much smaller.  My stock plant with 10-15 eyes in about a
foot wide. 

Joe's question as to whether a plant that is unstable should be marketed
is valid, and that is one reason I have not put it on the market.  The
plant is unstable, though not wildly so, in a clump, but has been even
more of a problem in tc and has been very difficult and slow.  I haven't
decided whether to sell the plant or not, but being unstable will not
necessarily stop me from selling it. I will make a decision as to whether
I think the plant is worthwhile, and I am inclined to think it is.  I
know it's unstable and I like the plant.  I think it's worth having
because I don't have a problem with the fact that I occasionally have to
remove part of the plant. The more difficult question for me is which of
the plants I have can be sold. If I take good divisions from the stock
plant, there should be no question, but the tc plants have to be grown
long enough to see if they match the parent.  Many do not.  Obviously if
I don't sell the tc plants, the few OS plants that will be available will
be expensive. Others will feel differently about introducing the plant,
but as long as I am honest in my description, that's up to the customers
to decide.  (For those who think that you can't be honest about a plants
faults and still sell it, take a look at my description of 'Embroidery'
on our web site. http://www.bridgewoodgardens.com/HOSTA%20CATALOG%20E.htm 
I have no trouble selling all the plants I grow. Some of you people just
don't have good sense.)

And as to dealing with tc labs, I have dealt with 4 different labs and
while I may be a naive country boy, I have not found that any have tried
to take advantage of me. I have had my problems, but I don't
automatically assume that someone is being dishonest with me.  In talks
with one lab, it was made clear that after I took my plants they would
sell to it others.  That wasn't satisfactory to me and so we did not do
any business with them, but our dealings were straightforward and nobody
tried to fool me. You simply have to realize that tc labs are in business
to make money and their needs do not always coincide with yours.  Not
every transaction has gone perfectly, but that's just the way things
happen.  Others may have had different experiences but many of the
stories I've heard seem to me to be a case of someone wanting a lab to do
something that simply wouldn't be profitable.

I know that this issue may have grown out of proportion, as many of my
issues seem to do, but for those who are tired of it, let me say in my
defense, it seemed pretty simple to me when I wrote the first message.  I
didn't get complicated until people started telling me I didn't know what
I was talking about.  Many of you know me well enough to know that I
can't help myself when that happens.


        So something happened, maybe exactly as you said it did - one of those
  times. It was bought at an auction and put into culture at another lab, or
  maybe divided naturally. Or it was sold on the sly by the lab you were using
  in violation of your agreement with them. And I won't be digging out any
  previous posts on the topic of what rights hybridizers have. If you know
  what happened and who did it, the rest is in your hands. Let the culprit
  have what they deserve. If you're sure you know, why not say who it was? I
  never understood the fear of saying the truth in public. It's almost like we
  need to protect the guilty so they can prey on others without any annoying
  alarms being raised by their previous victims. The words "slander" and
  "libel" refer only to false accusations, not to true ones.
        Anyhow, I'm on your side this time, which seems a little weird. Do you
  really think the person who did it didn't contemplate those foggy legal
  questions? Five'll getcha ten they've done it before and more than once.
  I'll bet they know exactly what the laws are.
                                           ...........Bill Meyer

    Welcome Bill.  I was wondering where you were.  Butch did his best to
    muck up the issue with patents and copyrights and other issues that had
    nothing to do with what happened, but he just really doesn't have your
    knack for needless complication.  Frankly it never occured to me to
    contemplate the foggy legal questions.
    Actually what happened was that the plants fell off the back of a
    tractor-trailer and were discovered on the side of the highway by a
    homeless person who just happened to be walking down the interstate.  Now
    he found the plants, but of course we can't really blame him because he
    doesn't know what a hosta is and simply thought they were tomato plants
    with tire tracks on the leaves.  He just happened to stop at a certain
    nursery, which shall remain nameless so people won't think they are
    guilty of something they were never accused of, and was given some
    cucumber sandwiches for lunch.  In gratitude, he gave the nameless and
    blameless nurseryman the tomato plants he found on the interstate,
    tomatoes going well with cucumbers, you know. The nurseryman recognized
    the plants as hostas, because of course they had no tomatoes hanging on
    them and it's already mid July. He called to tell me of his good fortune
    and unfortunately, the story somehow got garbled in the retelling.  I
    somehow got the impression that someone had stolen a hosta of mine named
    'Cathy's Clown'.  I can't explain how cucumber became 'Cathy's Clown' but
    somehow it did.
    Anyway, this has all been a big mistake and I'm sorry I brought it up.
    Never mind.
    I'm not sure how I can make this much simpler.  The plant was stolen.
    The lab knows the plant belonged to me, Oscar knows the plant belongs to
    me, and I'm pretty sure the plant belongs to me.  You guys can think up
    all kind of what-ifs and complicated scenarios you like, but it doesn't
    change the fact that the plant belonged to me and someone else, who knew
    the plant belonged to me, sold it without my permission.  There are no
    complicating factors no matter how hard you try to find one.  It has
    nothing to do with contracts, it has nothing to do with me not
    understanding how things work (though I certainly appreciate ya'll trying
    to clue me in, me being a simple old country boy now), and it was not an
    accident.   Believe it or not  Bill, it happened exactly as I said it
    I anxiously await your next theory.
    Bill Meyer wrote:
      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


      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


      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


      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


      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 it

      to retailers, I guess there isn't much question of their guilt in this.


      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


      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.


        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


        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


        could toss it off as just circumstantial evidence, but the plant looks
        exactly like my plant named 'Cathy's Clown', happened by coincidence


        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


        he is being maligned.  That's why I put in my first post on the


        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


        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


        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


        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


        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


        feel the same way.  What I don't understand is your making it your


        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


        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


        propagated.  I have done this quite successfully with 'Satisfaction',
        'Sergeant Pepper' and 'Surfer Girl' without difficulty.  The


        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


        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


        severely limited.   Your statement that you have no control over the
        plant once it leaves the lab makes me wonder whether you understand










        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


        '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


        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          


                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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