Trademarking and patenting may provide similar restriction but they offer different protection.
Trademark protection is meant to protect the owner from another person selling knock offs of their products and selling them under the same name/brand.
Patent protection is meant to protect the owner from another person copying what they created (sort of an IP copyright). It is meant to allow the owner to recover the cost of the development/invention process.
In your example, Trademark prevents anyone from selling roses and calling them ‘Knock Out Roses’. Patent prevents them from copying (cloning) the ‘Knock Out Roses’ and selling them under any name.
Plant Trademarks are real and valid but trademarks in general are really hard to enforce. You have to show original exclusivity and consistent intent to protect it. Let anyone start using the name because they were small and it is was not worth the cost to pursue them and you set a precedent that you abandoned the trademark. You usually have to Apple or McDonalds to have the resources to enforce (and keep) a trademark.
Of course trademarks are real and valid; when properly executed. However, they often are not properly executed. A plant trademark can not be the official name for a plant, but has to be for marketing purposes only. Many newer plants are not getting real official names, but instead are just being assigned a breeder code that aren’t even pronounceable words. When these plants are sold under trademark names they in practice only have one real name which is the trademarked name. This invalidates the trademark.
Here’s a really great article on trademarks becoming invalid (from Justia; my go to source for looking up plant patents):
(The following is just a snippet of what you will find if you click the below link)
How Does a Valid Trademark Become Generic?
While a generic term cannot become a trademark, a trademark can become generic. Ironically, the more successful the trademark owner, the more likely it is that a trademark will become generic, causing the trademark owner to lose its exclusive right to use and protect the trademark. A trademark can become “genericized” if the mark becomes identified with a type of product or service in the public’s mind, rather than a particular brand. Generic Terms Excluded From Trademark Protection | Justia
Here’s another snippet from the article:
“The mark should be used as an adjective, and the generic name of the product is the noun in a sentence about the product.”
This one aspect alone is enough to invalidate soooo many plant names that are trademarked.
Here’s an example of a correctly employed plant trademark: Echinacea Sombrero® Tres Amigos In this case the trademark is describing a line of plants (and can be used for multiple different plants). It is not used as the actual name for a specific plant.
An example of an incorrectly used trademark would be Schisandra Eastern Prince™. It is invalid because it is being used as the actual cultivar name. If it were a valid trademark used for marketing purposes it would need to be a term used along with the cultivar name and not in place of it. In this case, not only is it not used in combination with a cultivar name, but there is no other name even available for this selected clone! It is known ONLY as the cultivar ‘Eastern Prince’ which makes it generic and not enforceable as a trademark.
And for icing on the cake, here’s an example of a tree which has both a valid and invalid trademark use! Blushing Delight™ Urban Apple ®. In this case “Blushing Delight” is being used as if it’s the cultivar name for this apple despite the official name actually being an unpronounceable breeder’s code. This is incorrect usage of a trademark. However, “Urban Apple” IS a correct use of trademark as it is describing the series to which “Blushing Delight” belongs.
I had read Tony’s stuff long ago, but I may have new things to learn . I’ll check it out,thanks. The Justia link is great, and to me unexpected. But who determines when a trademark has been ‘lost’ unless a legal issue comes up?
Perhaps my comment was a bit opaque, but I do understand those distinctions. But I’m still not sure about how a trademark becomes invalid. I can see that someone who holds a trademark might choose to stop trying to enforce it. I have looked into trademarking as a legal option. But I like Tony Avent and I have to see what he also says. Thanks for the ideas.
Thanks, I didn’t know the topic could be found elsewhere on this forum. I assume you were contributing to it there also. I’ll look into it. I think there must be a place for every topic here !
But I wonder how to keep all topics separate if they come up in discussions. Do we stop for a time out to look for a better fit, then carry on there? Every forum I’ve read has some tangled topics at times.
The trademark issue came up here in response to my post about plant patents and how I think they affect small nurseries. As far as I’m concerned we’re still talking about it from that standpoint so I think it’s valid to have as part of the discussion of this thread even if it is covered as a stand alone topic elsewhere.
Yes, which is what I meant to say in describing the KO roses, which each have a patent name as their true protection, though they are marketed under a name which may or may not be a trademark. I’m betting that the KO people only are interested in the brand name, and leave it to patent holders to protect their own interests. Presumably KO pays the patent holders for selling the roses.
But I think your example is very good.
@Ged, Trademarks are really weak. They are really only as strong as your resources to defend them. I do speak with experience. I have tree patents and I have watched as two small companies (one my wife’s and another my sisters) that had trademarks that others violated and they were left powerless to defend them. In my experience, holding a registered trademark is not worth the cost for anyone but a mega company. All someone that violates is has to do is say “sue me” then watch as the layers take all your money until you have no more money to go any further.
Note that plant patents really only apply to commercial violations.
It is OK to collect scions of patented plants and graft (clone/copy) them for your own use (or research).
If you graft (clone/copy) patented plants but don’t call them by that name or stay small or at least don’t compete with the person that has the patent. Usually no one will come after you.
Cloning a patented rose then selling it publicly under the name is pretty much daring them to defend their patent/trademark. They pretty much have only two options, sue you until you submit or relinquish the trademark.
Very sorry to hear of your experience with this issue, and I can see why the details are very familiar to you. Thanks for contributing to my enlightenment.
You made a good point in that even if you are small fish in the big sea, it’s still worth it for them to come after you on account of them losing their trademark validity if they aren’t defending it. The patent remains valid for the full 20 years even if they don’t defend it though.
Back to the point of this whole thread though. I think these things really do impact small growers both in their cost of doing business and in their ability to carry plants that bigger nurseries sell. It’s not even just a matter of paying royalties to the patent or trademark owner. The owners can decide which nurseries they will and which they won’t let sell their plants regardless of their willingness to pay royalties. Also, since many of these controlled plants are grown primarily for the big nurseries, their minimum order requirements for cuttings/starts/liners/finished plants/etc. can far exceed the quantities a small mom and pop nursery can justify buying at a time.
It’s become so common for most surviving nurseries to carry the same line of plants as everyone else (all the patented/trademarked stuff from the big growers) that many customers almost expect any old nursery to have them. I find it sad when a customer asks if I have any of such and such Monrovia plant available and when I say it’s not something I carry they just ask when I expect I will be getting them in… I grow my own inventory! LOL
So while I’ve done my share of complaining about what I see as a major problem, I think I know a solution. Small nurseries need to continue the old tradition of developing new varieties (a little here and a little there; they won’t all have the bandwidth for major breeding programs) and then share those non-patented, non-trademarked varieties between each other to restore power to the little guys!
I think it’s easy to be fearful that if I develop a great new plant that others will make a lot of money off it while I make nothing if I don’t patent it. That may be true if I only breed plants, but don’t sell them. However, if I sell plants and the plant I develop is truly a great plant then there will be enough demand for my sales to be strong even if I don’t have a monopoly on the market. As fruit enthusiasts we know that some public domain varieties just keep selling no matter how long they’ve been around. More nurseries selling them just creates more public awareness.
I have watched artists/creators that get so possessive of their creation and fear of what might happen to it that no one ever ends up seeing their creation and by self fulfilling prophesy, it ends up being the last thing they create, and they vanish into obscurity.
Creators create, that is what we love and what we do, we need to gain benefit from our creations so be can create more but if we hold onto them too tightly we never learn what we could have been and done. It is a balance.
Note: 1% of anything is more that 100% of nothing.
