This is news to me

Star, Bailey and a few other nurseries have struck up a trade association for trademark enforcement.

Does anyone know what the initials CPBR stand for?

The Consortium for Plant Biotechnology Research, Inc.?

Community-based participatory research?

This sucks. They’ll get after me for not including all the proper “TM”'s and “(r)”'s and “PW”'s in my catalog and facebook posts. I’ve already gotten a call from Spring Meadow about not including TM or some shit like that on my facebook posts. Baileys has always been chill and a great place to work with, and it’s sad to see them getting involved with the @$$#0!&$ at Spring Meadow.

That’s an interesting development; it’s good to see that some in the industry are doing due diligence in trying to maintain their trademarks’ legal status in this way (it’s important, since improper display/use of trademarks can lead to their genericization and loss of enforceability).

It should be noted that many plant trademarks and trade designations are already being used or applied in ways that are at odds with the intended purpose, since they are meant to denote a business or brand/line rather than individual varieties. They are not (and cannot be) plant names, since the trademark is a proprietary device and its owner may freely use a given trademark for more than one variety. Trademarks that are either series designations or brand designations generally conform to intended use, but trademarks that are de facto one-to-one replacements for cultivar epithets do not. I’m not aware of any legal cases that have challenged such uses so far, so the practice remains extremely common. Many such trademarks are listed by this organization, and there are many inconsistencies and mistakes in the way that trademarks are being indicated even in their own downloadable spreadsheet.

CBPR usually refers to Canadian Plant Breeders’ Rights.

Joe, I don’t know if your Facebook posts constitute commercial use–it might depend on things like references to having the mentioned plants for sale, or your nursery, in the same context. In a commercial context the marks’ owners do have a right to demand how they are displayed. In a non-commercial context, it is considered to be fair use to display them without indicating the kind of mark, such as ™ or (R). Trademarks should always be displayed alongside the actual cultivar epithet as well, but even the mark owners themselves frequently fail to do that consistently–yet failure to do so risks genericization of the mark.

It’s interesting because on the design end, we surely don’t add ™ to any of the plant names specified on contractual documents. We would rather specify both botanical and common names as much as possible in order to get the intended plant. The TM is irrelevant and wasted space.

So does the private consumer care that much about branding? Typically, they just want a quality product. Spending a lot of time and money on TM when there is already a patent seems like putting lipstick on a pig.

There is some rather entrenched plant marketing dogma that the use of a trademark makes the product seem more exclusive, high quality, and desirable to consumers. I’m not sure if that is a research-based perception, but I personally am extremely fatigued by the marketing names. To me, they all started to look and sound alike about 15 years ago, and the taint of flimflammery that they lend to the product is a big turn-off. So much effort is invested in that aspect of horticultural commerce that it’s hard to see it changing anytime soon, though.

One of the reasons for using a trademark is to effectively extend the length of time that exclusivity can be maintained and royalties can be collected–by the time 21 years has passed and the U.S. patent expires, if the plant is still successful on the market and has an unknown/unpronounceable cultivar name but a famous and easily remembered trademark, the owner of that trademark can basically maintain control over the product and its sales and demand royalties for the use of the trademark. Trademarks also run out, but unlike patents, they can be extended indefinitely. I doubt that many people have rushed out to buy discount ‘Radrazz’ (even though it’s not that bad of a cultivar name, all things considered) absent the Knockout trademark, even though its patent expired in January. There is an art to cashing in effectively on the 21 years of patent coverage, ostensibly for those rare varieties that remain popular for the duration of the 21 years, but the vast majority of plants that are patented or have trademarks designated seem to fail commercially or become supplanted by allegedly better plants long before then. The game played by savvy marketeers is to ensure that any new cultivar epithets are codes or other jibberish so that they are hard to remember and impossible to pronounce (especially in contrast with the snazzy-sounding trademark), and all too frequently, to bury them somewhere in the fine print.

Tree breeders have a more legitimate grievance against the term of a U.S. plant patent–the cycle of propagation, marketing, and production is so long that they can never really benefit from a plant patent, and thus it doesn’t actually incentivize tree breeding (which is the whole point of the process–to help promote invention/breeding through reward, and in return, obtain novel products that then benefit everyone once they become public domain). In general, a better solution than allowing the horticultural universe to become polluted with endless cloying trademarks would be to try to change the plant patent system so that it is more fair to breeders. Trademarks should also be restricted to the purpose for which they were intended, as a way to to distinguish the sources of the plant varieties, not the plant varieties themselves.

That happens here in Australia too. It’s interesting how many non patented (or expired) plants get a new trademark name here, something like Red Intuition becomes Red Zebra TM.

Yup, so they can recycle something old, a new crop of people will think is “new and novel” and collect royalties on it. A great marketing idea, until those who buy Red Zebra compare it to their Red Intuition.

You likely know this well, but Australians were also probably responsible for the current style of top-to-bottom plant branding and marketing–I can remember back in 1996 when Noack’s “Flower Carpet” roses first appeared in their pink plastic pots with metallic gold writing and flashy tags, stacked prominently in front of stores with a full marketing blitz in garden magazines and newspapers. The genius behind that watershed moment was Anthony Tesselaar Plants. The campaign changed the game, and it was soon replicated in almost copycat fashion with “Endless Summer” hydrangeas in their blue pots, and then the floodgates opened. An entire industry of plant marketing and labeling practically owes its existence to Tesselaar.

… every time see a ag product in a glitz pot my first thoughts are another cheap and nasty promo relying on tinsel town approach that wont make it. No baring in fact, just a “snob” mind set …

Add, “over priced so the patent owner can afford his beach house in Aruba” to the snob mind set.

Here is an article on the branding situation with apples which parallels somewhat the situation with the horticultural industry. You’ll note that the apple branding competition started with the abandonment of the apple growers cooperative marketing effort at the turn of the century, a situation that occurred a bit later with cherry growers (not mentioned in the article).

It will be interesting to see how things shake out with the fruit people and if the horticultural people will follow suite.