My figure of approximately $AUD $10,000 to establish and to maintain the rose patent in Australia over 20 years, takes into account annual maintenance fees as they currently appear.
Such an investment would seem utterly ridiculous to consider, unless we have some kind of “rose masterpiece” to market.
Ah, I see that I was mistaken. There are no maintenance fees for plant patents.
We are less fortunate here in Australia regarding the fee structure… just another disincentive for us in this part of the world.
Here is a hypothetical question that has been nagging me…
Say someone purchases budwood of a patented variety and buds his own plants for the purposes of breeding (not for selling the budded plants). Does the breeder get royalties from this sale, and if not, then does this activity violate patent law?
Putting it in a different way, does the seller of the budwood give royalties to the breeder from the sale of the budwood. Assume here that the “seller” is a bona fide registered seller of budwoods.
I don’t believe there are any retailers who will sell you budwood of a patented variety for the purposes of propagation. Not in this country, anyway.
Thing is, there is a big supplier of budwood in Australia, but I am now checking with them about this issue…
I suspect you will find they do not offer patented varieties. However, if they do, they are probably reporting sale of these for royalties. In fact, they’d be legally obligated.
I know who you are thinking of George and they are probably THE biggest supplier of budwood in the country and one of the biggest in the world. They supply most of the major growers in the country with budwood and are like a repository for roses from which this budwood can be sourced. I have contacted them in the past to purchase budwood myself and have the catalogue to select my budwood from. However, this is from their website:
“AN IMPORTANT MESSAGE - Thank you for visiting our website and using this facility to find your favourite rose. While we have over 4,000 rose varieties in our garden…” “…we are not a nursery but we are one of the major suppliers of budwood to Australia’s nursery industry. If you see a rose you would like on this database can we suggest you contact one of Australia’s major rose propagators (nurseries) and arrange for them to either supply your requirements from their stock or alternatively they can purchase genetic material from us to fill your order.”
They will recommend you purchase the plants from the propagators who are legally enititled to propagate this material (and if they aren’t they can get the necessary permits). None of the budwood I want to buy (Teas and miniatures) is PBRed so it doesn’t worry me.
Simon, I wonder then if they sold you the budwood because the varieties you sought were not patented? …Does this mean that they they would have directed you to a rose grower to buy any stuff they keep that is patented?
In any case I’ll let you know what they tell me if as soon as I know.
Paul, I am sure you are right also, it makes sense.
You are very confused You say that trademarking protects the name of a rose
If a trademark is accepted as the name of a rose then the trademark has become genericised and is invalid. The trademark is meant to identify the producer of the rose and NOT the rose itself
You used your whole chest to (and your very first post!!) tell an unclear somebody that they’re confused, when you don’t even punctuate?! Bizarre…
Jeff seems to be responding to the first responder in this thread. The word “name” is often used colloquially in reference to both trademarks (“trade names”) and cultivar epithets (“cultivar names.”) The first responder was essentially referring to a trademark being a protected “word mark” that most people will tend to use instead of the cultivar epithet; that is the almost inevitable result when so many mellifluous trademarks are paired with unpronounceable, difficult to remember code cultivar epithets that are usually either buried in fine print or are not even displayed by plant marketers at all. The International Code of Nomenclature for Cultivated Plants states that the cultivar epithet must always accompany a trademark, and doing so would probably satisfy the legal requirements to prove that the trademark is not being genericized, but the existence of the ugly code cultivar epithet seems to be regarded as a nuisance by most marketers and the idealistic Code is not legally binding. It is pretty clear that many plant trademarks are effectively being genericized, but I don’t know that there has ever been a single legal case brought to test that idea. Trademarks are usually supposed to be intended to identify a seller or brand, but when it comes to plants, they are in practice frequently just single-use marks applied to only one cultivar. In some cases, a one-off trademark used for a particularly successful plant might actually lead to a trademarked “series” that comes a bit closer to the expected intention of a trademark, as was seen with KNOCK OUT roses and ENDLESS SUMMER hydrangeas, which further muddies the waters (one could argue that various non-plant products also began with a single product that ultimately grew to become an entire brand identity). While trademarks were and are used to effectively extend protection beyond the limitations of a mere patent, some large marketers have more recently convinced themselves that consumers believe plants with trademarks and ridiculous code cultivar epithets are more elite and deserve higher prices than those that do not have them, and so they are almost compelled to employ them lest they lose market share.
Stefan
Absolutely very well written Stefan. One thing I will point out though is that many people think that trade names and trademarks are one and the same thing. Do a quick search on the net and ask the question “are trade names and trademarks the same thing. You will find that trade names are an alternative business name for a company. On the other hand trademarks are associated with the companies products Trade names do not have to have trademark status but can be trademarked. Thanks again Stefan for your excellent appraisal of the generic misuse of trademarks I could write a book about it. One of my heroes is Tony Avent who wrote an inspirational article that can be found on the net Titled Name That Plant The Misuse of Trademarks in Horticulture
Welcome to the forum, Jeff!