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Trademarks and the Backyard Nursery


Hey again it’s Jason from Fraser Valley Rose. Today I wanted to talk about a slightly different topic. I’ve talked before about whether you have the legal right to Propagate a plant that is patented and how long those patent periods should extend in a slightly different question I’ve had this as a follow up to that video is what about those pesky TM symbols or “R” symbols behind the name of a rose (which is my business) or any other plant – if you are allowed to propagate those plants are you allowed to use the name? I have to acknowledge right up front in this video a big debt of gratitude To Tony Avent who opened my eyes to this issue I read an article on his website Plant Delights Nursery I will link that below the video in case you want to have a good long read which I promise will be very enlightening as to the practices of the horticultural business. The article is titled the misuse of Trademarks in horticulture, which I think gives you some idea of where I’m going in this video. Just to review a little bit You’ll remember in the previous video I made on this that plant patents last for 20 years so they grant a company or the breeder Exclusive rights to that variety for 20 years. Is 20 years in appropriate amount of time? I don’t know You could argue for more you could argue for less But that’s basically what the international governments have agreed upon and I’m willing to live with that The problem is that some of these companies Aren’t, and they find ways to skirt around it. I’m going to speak a little off-the-cuff here because like I said before I’m not a lawyer You don’t want to take your legal advice from me but from everything I’ve read they are misusing the Idea of trademark and if you read the Tony Avent article that I’ve linked below here he comes to the same conclusion I’m going to give you some real-life examples here for fear of Getting in trouble a little bit with other people from My industry but I’m gonna go ahead anyway is to say that Double Delight was introduced in the 70s I believe that Bonica, which is a very popular rose, was introduced in the 80s and then a third rose ‘Livin’ Easy’ was introduced in the nineties Now I use these names As if those are the real names of the Roses I’m going to reveal to you in a second that they’re not but if you remember from those dates the 70s 80s and 90s for the 20-year period Those are all expired so I have the legal right right now to go to any of those varieties of roses Take cuttings from them tissue culture them do whatever I want to to propagate them and that’s an indisputable legal right The problem is and here’s the catch that if I go and try to sell those roses and I try to use those names Then that’s when those companies come back and say “AHA but I own the right to that name” So here’s what they’ve done is Though the real name of the rose is hidden as a little code it’s in brackets it’s underneath the name it’s like the little parenthesis down there and so for something like Bonica it’s the almost unpronounceable MEIdomonac For ‘Livin’ Easy’ I think it’s HARwelcome or something like that so they’ve intentionally given the plant a nonsensical name that it couldn’t possibly be marketed under leaving people like me in a position if I wanted to sell something that people understand to be ‘Livin’ Easy’ Can’t use that name But people won’t understand the alternate name So I really would urge you to go back and read the article by Tony Avent On the misuse of trademarks a horticultural but from what I understand all of these could be subject to legal Challenge and maybe even should be but here’s the problem for me is I’m a small grower and if you’re watching my channel and you’re considering being a backyard gardener or backyard Nursery you’re a small grower too and the last thing that you want is to get a letter from one of these companies Says you need to cease and desist using our intellectual property our trade names And you probably wouldn’t want to get into a legal fight over it either So I just want to go through one technicality here and it’s kind of an. Ugly workaround But it’s what I do right now if I go onto my website and I want to post some of the roses that I’ve Propagated I know I have the legal right to propagate them through the plant patent law But it has a name that’s restricted well then what I do is I tell my users quite forthrightly these are the names the denominations the coded denominations of these roses Here’s a website where you can find the information of what those roses really are and then I don’t tell them Alternately I guess I could just rename the roses so this is a little weird because The trade names that they gave the roses are not legitimate names so Bonica is not Bonica, Bonica is a trade name of Meilland I could call that ‘popular pink shrub rose’ I could Make labels on on that name and I could put it out there myself and and that could be the name of the rose as far as it is in my market I Hate the idea of doing that because it’s unclean because it’s not fair to rosarians it’s not fair to the customer it’s not fair to the future to have market Confusion over what the name of this Rose is so Honestly I would just really encourage the rose companies to stop this ugly practice of giving fake Nonsensical names to their roses and then patent or trademark and registering the The trade name I also think and this is where I’m gonna wax a little moral on you is I think they’re abusing The Rose societies I think they’re abusing the goodwill of the public in the matter because the road societies and the Display gardens and exhibition gardens display it under the name Neptune under the name hot cocoa under the name Julia Child they put them out there as If that’s the real name of the plant and they promote it but what they’re really doing is they’re giving advertisement to these companies That are doing this unscrupulous practice of trade marking these names Then when the trademark period or when the patent period comes to an End and it’s time for these roses to belong to the world then they go. Aha that was never the real name of the rose we fooled you and And so you’re stuck with this ugly nonsensical denomination that becomes the name of the rose and somebody holding a trademark over the head of Everybody else in the world so that’s my rant on the issue I’m sorry I’ll have a better answer for you But whether you can use these trademarks or not if you were a lawyer or if you were somebody who has a better understanding of the law than I do or a little bit of money in the bank and you want to challenge these things I Think you’d have a good chance at least by my reading of it but it’s not going to be me who does that so thanks for watching today I hope I’ve shed a little bit of light on this ugly practice and please leave comments below the video I’d love to hear what you have to say about this

10 Comments

  1. dietrevich Author

    Hi, I love your channel but got just one comment. The registered name of the Rose is not meant to confuse or to make an unsellable name, the purpose of the registration is to standardize the roses and it typically involves the first three letters of the breeder so for example David Austin Roses usually have a AUS or the meidilland have MEI in front and then some code this way like you said if a trademark name is not used someone wants to propagate a rose and gives it a different name everyone knows using the registration name that it is the same rose and not another similar Rose or a new creation. Hope that clarifies that bit somewhat

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  2. wictorsson Author

    Thank you for this video. I did read the article and it was very interesting. It only shows how greediness will drag you down in the end, as always. Not so funny for the nurseries that have spent money on what they think is a safe investment when it becomes an invalid trademark. But in the end if it becomes invalid trademark it is free to use. I think we will see more nurseries lose their trademarks due to miss use.

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  3. Perdido Atlantic Author

    Good info. I know someone who is “licensed to sell David Austin roses”. So my understanding is when she sells a DA plant a percentage is sent to DA in UK. Is that your understanding?

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  4. Video Plus Author

    This video clear some stuff, people really needs to know this. If you can make video how to make scientific work in rose fields, what people can research and similar stuff. Thank you.

    Reply
  5. Sherwood Botsford Author

    I wonder if you could sell the rose as rosa {botanical name} then in your literature say, "This is sold by XYZ company under the trademark Julia Child Rose"

    Secondly: How often do the big guys come after little shrimps. Is it worth their time to chase down someone who is growing 100 roses a year?

    Thirdly: In event they do crack down, would it not be sufficient to remove the trademark info off of your public sales literature.

    Finally: When advertising your rose on the internet, respell the name, recoding one or more characters of the name as unicode. E.g. instead of "Julia Child" you use "u004au0075u006cu0069u0061u0020u0043u0068u0069u006cu0064" or some mix of unicode and ascii. Adding non printing spaces, or using different sized spaces (m-space, n-space) makes it appear the same on your web site, but not findable in a search. This also means that people can't search for Julia Child Rose and find your page for it. But you can have a page that lists trademark names and botanical names generally, and the botanical names are links to your page.

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