What is the purpose of trademarking a rose?
Trademarking protects the name. It’s a less expensive option to patenting.
Large companies put money into advertising roses by a particular name. Trademarking protects that name and thereby investment. However it does nothing to prevent others from propagating the same rose and offering it under another name.
You’ll note for instance that sometimes Austin’s offerings are offered by codename.
Protecting one’s work is difficult.
How sneaky it is to propagate and rename a trademarked rose! I would have guessed that this would still be illegal, despite the absence of a patent, but there you go!
As an aside, if a rose is then patented in one country only, can others legitimately copy and rename and sell the same cultivar in countries where there is no patent for this rose?
You’ll note for instance that sometimes Harkness’s roses are offered by local nicknames.
Reflecting and protetcing oneÂ´s work may be done by networkers.
“I would have guessed that this would still be illegal, despite the absence of a patent”
Well, of course thats illegal, but the burden of proof lies with the owner of the plant and it is costly to get into the ordeal of proving that its your rose that has been renamed and reintroduced by an unscrupulous nurseryman. If someone wants to do this, there is almost no chance the perp will be caught, let alone prosecuted for it.
“How sneaky it is to propagate and rename a trademarked rose!”
What’s worse George, there is nothing to prevent others from offering a trademarked rose without disclosing provenance.
Basically, nothing prevents theft. Others can take a trademarked rose rename it and offer it as their own.
All history of the cultivar including breeder and lineage information can be lost. There is current precedent.
I find this to be one of the most discouraging aspects to hybridizing roses. Of course if one’s work is unique enough it speaks for itself. At some point however, it would be nice if one’s efforts paid off in some way. Registration and documentation is the only proof we have of our efforts.
Patenting solves these problems, however it seldom pays for itself and does not offer protection in perpetuity. This is one reason few currently go the trouble and expense. It used to be more common to patent before cultivars came onto the market less frequently.
Even then, active protection can be circumvented if violation uncaught. Additionally, one need prove damages and provide additional funds to police one’s investment. It isn’t often worth the effort.
What is required for the sale of a cultivar to attract “plant breeder’s rights”? (eg. patent / trademark / other legal instrument).
Here in Australia George you can trade mark a name to prevent anyone else from selling your rose under that name. It doesn’t stop anyone else from selling the rose under a different name or even trade marking it under there own name. As was mentioned above, provenance is not required to purchase a trade mark. The PBR, in Australia, allows you protect both the plant and the name from illegal propagation and sale. The PBR is a patent to protect your rights as a breeder and anyone, who owns a plant, can take out a PBR. I’m not sure of the cost here in Australia but you can find all the information you need at the link below. There are a lot of other options as well.
I hesitate to contradict Paul, but here goes. In the USA, a trademark protects the use of the rose name only. A name, symbol, sound or color that distinguishes goods or services from those sold by others may be trademarked. The reason rose names are trademarked is that a trademark applies indefinitely so long as it is used in commerce, not just 20 years. The purpose is to allow the purchaser of goods to know instantly that the goods are identifiable and to allow the holder of the trademark to protect its investment in its reputation. These purposes are served by the Nike Swoosh or the Mercedes symbol. Roses are very different. There is no rose that bears a trademark on its surface that I know of.
Roses are not trademarked, but their names may be. If a rose with a trademarked name is registered under a breeder code name, the rose, if not patented, may be sold under the breeder code name, or so the argument goes.
Here’s an explanation. The author’s perspective may not be popular here, but I agree with it completely. Instead of the expensive patent system and the misapplied trademark system, I’d prefer a plant breeders’ rights statute distinct from the Patent law and part of a uniform international system with a uniform international database and enforcement mechanisms.
Simon, I am going through your link now, thank you.
Cass, thank you for the legal perspective…what a mess the whole trademark thing is in legal reality.
Cass, thank you.
The explanation of the problem in the article you provided is the most detailed I’ve ever read. I learned some things.
I wish I could say it made me feel better.
That’s a great link Cass… I’m going to have to read it a few times to take it all in, but from what I understand from the first read, and using roses as the example, it is saying that the trade mark should state where the rose came from and the registered cultivar name should be the name following the trade mark… I am wondering how this would be written??? If my property is called ‘Cherokee Hill’ (after laevigata of course… the most beautiful rose EVER!!!) I can trade mark the name ‘Cherokee Hill’ and from this point on it would be written as Cherokee Hill
Should have closed brackets after “something else” in 3rd last line.
Thus = This on last line
rolls eyes at stupid typos
Cass is right, of course; you can’t trademark a rose, but you can trademark a name. However, trademarking a rose’s name isn’t how Trademark was ever intended to be used. Its meant to create a proprietary identity of a line pf products: a brand name. This doesn’t have an application in roses, except to create a line of rose styles, like Romantica, or some of the Meilland landscape types like Flower Carpet, the latter which I believe, is a trademarked brand name.
The irony is that if a breeder trademarks a variety name, lets call it ‘Poofy Pink’, they can substitute a different variety under that name at any time and still operate within the legal terms of the trademark! So, ‘Poofy Pink’ might be one cultivar in 1999 and a decade later a completely different rose might be presented under that name. (Correct me if I’m wrong, Cass) Any time the breeder feels he/she has an improved variety that fits the trademarked name, they can swap it in and market it. This is why trademarking a plant variety name isn’t very helpful, and is not the intended use of the concept of trademark.
And yes Simon, only a patent truly gives the breeder any rights to revenue from their creation. Its an imperfect tool, but its better than nothing.
I can take any rose and trademark this rose under my trademark.
But it is illegal to tell that I am the breeder if I am not?
Such an act is clearly fraudulent.
Yes, Paul, you got is exactly right, to my understanding, at least. Tantau and Kordes, for example, will trademark a name and over the years release multiple roses under that name, never registering any of them. It is not uncommon to see a rose released once every two decades. With florists roses, its even worse. A generic red scentless HT will be released and re-released frequently under a trademarked name, never the same cultivar. The ARS as International Cultivar Registration Authority tried to curb this practice by refusing to register non-unique names. The EU producers thumbed their nose at the ARS and never looked back. By creating nonsensical breeder code names and then marketing under any name they like, many producers just bypassed the registration process altogether. So now we have chaos, five roses named Moonlight, for example.
Trademarking types of roses, like Garden Ease
Inserting a gene marker should make it much easier to prove ownership, as has apparently been achieved with the Japanese “blue?? rose” developers…beyond the $$ means of most humble rose breeders atm.
George… did you read the risk management doc for the blue rose approved for release by the Australian Govt.? In it they say that the transgenes are in a non-inheritbale tissue layer so they don’t expect it is able to pass on the trait to people using its pollen and so they have not worried about adding any conditions to prevent the use of the pollen in future hybridising activities. It’s open game here and if it ever manages to ‘jump’ layers it might also become inheritable.