Am I allowed to distribute Drippin Honey scions on the message board?

General Fruit Growing
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Again, is this variety patented? Trademarked or both. I don’t really care that much but just like with Eden Crab, I don’t want to violate the rules here.
I’m about to go prune my trees and collect a bunch of scions.

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I think Gurneys applied for a patent but never got it. 39th parallel sells it as Honey Asian… I think the ‘Drippin’ part may be trademarked though.

I guess you could legit call yours Dripping Honey Asian pear and be fine.

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It appears that Gurneys has a trademark for Drippin Honey because it adds a trademark symbol ™ as a superscript whenever it refers to this Asian pear.

But there is a doctrine in trademark law known as “Fair Use.” Because there is no way to describe Drippin Honey scions without using the trademarked term, your use would qualify as fair use IF there is no likelihood that purchasers will be confused and believe that the scions are coming from Gurneys. If you want to be extra careful about avoiding “likehood of confusion,” you could indicate that you are not affiliated with Gurneys.

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I’m not really concerned about running afoul with Gurneys. I just want to make sure I’m not breaking any rules of the message board. I distributed Eden Crab and that was allowed. Drippin Honey i’m not sure about because trademark vs patent etc. If the mods let me distribute it here then I’ll go ahead with it.

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if it makes you feel better you can say “the cultivar that Gurney’s calls Drippin Honey”.

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I couldn’t find any patent info for it, but considering they still list it as PPAF (Plant Patent Applied For), but it’s already been on the market for over a decade, it’s safe to assume that patent application either never got filed, or was rejected. PPAF should only be used to designate new releases which are currently in the process of being patented.

Additionally, plant cultivar names can not be validly trademarked. A business can assign a marketing name to a plant which is trademarked, but to remain valid, the cultivar name must also be listed along with any trademark name. In the case of ‘Drippin Honey,’ Gurney’s lists it as:
Botanical Name Pyrus communis ‘Drippin’ Honey’ (note: single quotes are used to designate cultivar names, not trade names)

All this said, the lack of valid trademark on the name as well as the lack of patent mean you are fully in the clear to distribute scion wood of this variety under the cultivar name ‘Drippin’ Honey’ without violating forum rules.

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