Some varieties recently off patent

There’s a note on that Dave Wilson list that explains why they list Pink Lady…

Patents DO NOT expire if name remains trademarked:

Im not sure that’s correct… but IANAL

If a fruit ends in glo you knows its probably going to be good. lol


Yea, this is not correct. The patents expire 20 years after the priority date. Trademarks don’t expire as long as the maintenance fees are paid though, so it IS correct that someone couldn’t sell “Pink Lady” trees or fruit without permission from the trademark holder. You can sell “Cripps Pink” though.

This is what makes Glenn Welsh/ACN’s strategy clever. You couldn’t use the name “Glenglo” even though the patent is expired because the Trademark is still active. You could use the generic name GW115 but how many consumers are going to the store looking for that, lol? You could also make up another snazzy name for GW115 and just use that.


I believe Brad is right on the patent/trademark issue. DWN is factually incorrect that the “patent continues.” Patents expire, period. Trademark lives on, but that should only apply to selling anything under the trademark name.


List from DWN says, “Patents DO NOT expire if name remains trademarked:”

Straight from the US patent office:

Im guessing DWN keeps saying that the patents dont expire so that they can continue to sell trees. Many of their varieties, ie any of the Zaiger fruits, are or were patented varieties. When they come off patent, anyone can legally propogate them. By saying that the patents dont expire, they are trying to keep other folks from grafting their own plants.

Trademarked names dont expire if the fees continue to be paid.

You cannot sell your scions under a trademarked name without a license from the owner of the trademark, but if that same name was used in the patent or is listed as a registered varietal/cultivar name with USDA, then the trademark is not valid and probably should be cancelled. See this:

A varietal or cultivar name is used in a plant patent to identify the variety. Thus, even if the name was originally arbitrary, it “describe[s] to the public a [plant] of a particular sort, not a [plant] from a particular [source].” Dixie Rose Nursery v. Coe, 131 F.2d 446, 447, 55 USPQ 315, 316 (D.C. Cir. 1942). It is against public policy for any one supplier to retain exclusivity in a patented variety of plant, or the name of a variety, once its patent expires. Id.; accord Pennington Seed, 80 USPQ2d at 1762.

But either way, you can legally propagate it once the patent expires.

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