I’ve got the opportunity to acquire some scion wood from the Surefire tart cherry, and I’d like to propagate the tree. The variety was a patented variety (PP11,108). My understanding is that the patent is good for 20 years after the filing date. From the link below, it looks like the patent filing date was June 30, 1997, so I should be fine to propagate it this year, right?
Note, the patent on the plant itself expires in 20 years. However, the rights to the name (branding rights) never expires. You may have to call it something else which does create synonyms and confusion in horticulture later on. God bless.
You’re right that anyone can create a trademark under which a variety might be sold, but the trademark must be different than the varietal name under which it was patented. See the following article: http://www.goodfruit.com/patents-and-trademarks/. “…the varietal name in the plant patent has no exclusive rights, said Rosemary Tarlton, attorney with the Morrison and Foerster firm.” For example, the Ridgewood sweet cherry cultivar patented by Cornell University is sold under the trademark name Blackgold. In my original post, however, the Surefire cherry appears to be patented under that varietal name, which I believe means I should be in the clear to propagate it and market it under the name Surefire as long as the patent is expired.
Also, trademarks do expire but unlike patents, trademarks are renewable indefinitely.
I recently e-mailed Michigan State University to ask about the patent status of several Hungarian cherries that they released such as Balaton, Danube, and Jubileum. The response I received is below:
“These Hungarian cultivars are not patented, instead they are trademarked. This allows for a royalty to go back to Hungary for every tree sold since the Hungarians are the ‘inventors’. MSU is authorized by the Hungarian breeders to license propagators in the U.S. Certified budwood is maintained a the Clean Plant Center - Fruit Trees in Prosser, WA.”