If you have already distributed them without any contract where those parties agreed to not propagate them as a condition of the purchase, then your variety is already in the public domain. You have no legal recourse to stop someone who has access to one of those trees from taking scions and sharing it, and you cannot demand any kind of payment from them if they do.
This is true regardless of whether you now get a trademark for your varieties, or publish it as a named cultivar.
If you trademark the name, then no one else can propagate it under that name without your permission, but they can still use another name and propagate it. If one of those other names catches on instead of your name, then itās possible no one will know you created the cultivar originally.
If you publish it as a cultivar name, then anyone can use that name when they propagate it, and everyone will still know that you are the originator of that cultivar.
Sorry if I overlooked this information in the above posts. What is your goal with the patents? IMO plant patents only benefit the large companies that have spent years developing the variety and have deep enough pockets to advertise it and then pursue individuals that are propagating without the patent holders permission. Without a hefty advertising budget, your patented variety will never sell enough to justify the cost you will spend to patent it. If you cant hunt down and prosecute the people who will eventually sell the product under a different name you are wasting time and money with the patent process as well. There are 100s of apple varieties and many of them look similar. You would have to file court action and genetically test every apple you feel could be your patented variety. Plant patents arent as simple to enforce as a unique physical item that is manufactured.
Iād like to be able to sell my trees and whoever sells them, Iād like $2.00 royalty for each tree. Iād like to have my trees known to be a good apple and where theyāre from.
Like the golden delicious in clay co wv. Iām in Gilmer co wv, by the way.
They only way you can get a royalty at this point (since the varieties are already in circulation) is if you simply get a large grower to agree to pay it which will be a simple written agreement to do so. It wonāt be from a patent or trademark. It might be easier to just charge to provide scion wood to growers so that they keep purchasing from you each year.
FYI, a $2 royalty is a bit high even for a patented plant. For perspective I took a look at a wholesale list of a Nursery near me. They list what portion of each plants price is the royalty. The per plant royalty varied anywhere from $0.10-$0.85 per plant. It might be a challenge to get a nursery to agree to a royalty thatās high enough to be worth more to you than what you could get if you just sold scion wood.
So therein lies the problem again. If you arent going to graft and sell them yourself, (which then you simply sell them for what you want and call it all a royalty, LOL) or you must convince a major player in the market that your apple varieties are worth their time to propagate and actively pursue violators of the patent. Not an easy sell to a major player in this day and age.
Johanns Garden has a valid point, but in all honesty there is no honor among the large commercial nurseries anymore. As soon as you convince them that your apples are worth growing they will buy some scion from you and then grow out their own parent trees. You wont have a leg to stand at that point since it isnāt protected under a patent.
I am not trying to be the Debbie Downer on the patent or trademark ideas just trying to be realistic in terms of you not investing a bunch of time and money into a project only to see that it doesnāt accomplish your goal. I am all for people promoting seedling apples they have found useful. The genetics of current commercial apples is based on a small āfamily treeā pun not intended and that really doesnāt benefit the world in the long run. We are always happy to go with the names chosen by the finders when we decide to propagate those seedling varieties and then sell them.
Their ability to have negotiated high royalties is surely due to bargaining power. Those varieties were developed by organizations with extensive financial backing and testing/trialing to justify the prices. You would not be able to make such high demands simply because you as an individual think theyāre better than store bought (which to be fair is not always due to cultivar, but sometimes growing conditions or ability to harvest at the best time for flavor at home vs. under-ripe for commercial). No way they would agree to paying high royalties without first having proof of marketability that you arenāt prepared to offer. (Iām in no way trying to imply your varieties arenāt great).
I do graft myself. Iāve been grafting these trees since 2016 and I know a lot of orchardists usually want some scions or full trees in the spring.
So, I guess as long as I sell to home orchardists and seekers of heirloom varieties that just have small orchards, Iāll be fine?
Because I donāt really want to be selling my trees and scions and then 10 years from now see them on shelves for an outrageous price and Iām not getting any money from them since Iāve worked so hard for them.
If you dont want people to steal your varieties, then dont propogate and sell them
Once they are out of your hands, you have no control over what happens to them.
Trademarkās really hurt the Greenmantle Etter selections. Because Greenmantle required all of the customers to sign non propagation agreements, there are now very few of these varieties in circulation.
I have been trying to get a scion of Atalantaās gold now for 2 years. Iām on Facebook groups, this message board, Derek Mills list and a bunch of others. No one has this variety. Currently the only way to get it is to buy a whole tree from Trees of Antiquity. If for whatever reason, their trees died it could be lost forever.
The more widely available they are the less able anyone will be to sell them at an outrageous price. If anyone else does start selling your varieties it will only add to the credibility of them as it means other people believe in them enough to propagate and distribute. Think how widely available āGranny Smithā is and and yet there are still people who donāt have it yet, but want it. If only one person ever grew and sold it there would be less supply AND less demand because many people wouldnāt even know it existed.