Another Day in the Office

Well, it's still cold outside. Looks like some snow on the way. Small crew today. Dr. Gredler and Urban worked on painting and sanding respectively while we saw Marianne, Marv, Maury, Vern, Del and Dick H. Bill was here earlier cleaning up our trash bins for repainting by Dr. G. I did a presentation for the Golden Kiwanis Club here in Janesville this morning with Rod. It was a nice group and of course we hit them up for memberships too. On the horizon this week for me is more seed ordering and finishing up my early February presentations.

Two seed catalogs are shown here. I utilize both of these extensively as they seem to have new offerings each year. Vesey's (from Maine) has a nice catalog and runs the full gamut of vegetable and flower seed. They've been around over 70 years and their seed quality is very good. They also have a neat section at the end of the catalog with tools and gardening stuff. The other catalog is Fedco (also from Maine) that has an amazing array of seeds including many heirloom vegetables. The catalog is black and white (which doesn't bother me) but very witty in terms of descriptions. Lots of little historical information too. It is an enjoyable read. Their seed is good but oddly enough, they don't take phone or FAX orders. Regardless, I recommend both of these seed companies based on personal experience over the past 10 years. I do want to mention that these are personal endorsements based on my experience and I don't get anything for mentioning these sources (although I would take free seed....). Included below is a great article by Janice Peterson, one of our grounds horticulturists, on plant trademarks that should help clarify some confusing issues regarding this topic. Enjoy...Bottom picture is of Calathea ornata 'Roseo-lineata' up at the Olbrich Conservatory. Exquisite.

Cultivar Trademarks and Patents

By Janice Peterson, RPMGV

I own a Black Lace ™ elderberry. I also own a Sambucus nigra ‘Eva’. They are the exact same plant. Chances are my fellow gardeners will recognize the former name more often than the latter. With the advent of intellectual property rights in horticulture comes a whole lot of confusion as to the naming of plants. Just reading the plant tags at a nursery is a lesson in legal abbreviations: ™, ®, PPAF, PP, PVR and so on. Here I will attempt to demystify some of these terms, and discuss some of the controversy associated with naming cultivars.

Botanical Names

The true name of any cultivated plant is governed by the International Code of Nomenclature for Cultivated Plants (ICNCP). The primary purpose of this internationally recognized code is to ensure that each plant has one and only one unique, proper name. Generally a cultivar is given a botanical name (a genus and species, which are italicized to indicate their foreign word origin) followed by a cultivar epithet. The epithet is capitalized and set in between single quotes, and not italicized. So my elderberry, according to ICNCP, is Sambucus nigra ‘Eva’.

Trademarks

A trademark identifies a brand, not a plant cultivar itself. Think Tylenol®, which is the brand name for a line of products containing acetaminophen. Brands are identified by a ™ (trademark) or ® (registered trademark), depending on what stage they’re at in the legal process with the US Patent and Trademark Office. Trademarks are renewable every 10 years. A plant variety can be marketed under a brand name, but the botanical name of that variety is not part of the trademark. For instance, my elderberry is marketed by Proven Winners, LLC under the trademarked brand Sambucus nigra Black Lace ™ even though under the ICNCP it’s Sambucus nigra ‘Eva’. Many times the trademark is used in a series, such as the Wave® petunias. Anyone can asexually propagate a trademarked plant, and even sell it, but only the owner of the trademark name can use it for marketing that plant. Other nurseries must create their own trademark name or use the botanical name. An interesting example of this is the rose Rosa ‘Korlanum’, which is marketed by three different nurseries each using their own trademarked name (Surrey™, Sommerwind™ and Vente D’ete™). The public might think these are three different roses, but in fact they are all the same rose, Rosa ‘Korlanum’. On the other hand, a nursery using a trademark name can change which cultivar to which the name is attached. In other words, the only way you really know what you are getting is to check the botanical name!

Plant Patents

Sometimes on a plant tag you will encounter a PP# or PPAF, along with a stern warning such as “asexual reproduction of this plant is prohibited”. A company may be granted a PP (plant patent) or a PPAF (plant patent applied for) by the US Patent and Trademark Office. A PP is good for twenty years from date of application. A license must be obtained from the patent holder in order for anyone else to take cuttings from that plant, even for one’s own personal use. However, there is no regulation against using the patented plant for sexual reproduction. The patented plant can be crossed with other varieties, creating offspring that are not regulated by the plant patent. When a plant is patented (or pending) a royalty is paid to the owner of the patent for each plant sold. Some other terms that might be encountered are PVP (plant variety protection) or PVR (plant variety rights); these give somewhat similar legal rights as plant patents.
There is much controversy about the use of trademarks and patents in the horticultural industry. Certainly, patents protect the financial investment of the developer of new varieties. However, they are costly and time consuming to pursue. Some nurseries feel that trademarks offer the same protection without going through the more costly route of patenting. This is untrue, as only a patent offers full legal protection to the breeder of a cultivar. Trademarks, however, can be very useful. Brand name recognition is a powerful marketing tool.
Some in the industry worry that we are losing our ability to properly identify varieties, as trademark names are more often being mistaken for the true botanical name. Obviously, it is an advantage to nurseries to have the public think of a plant by their proprietary trademark name and not the botanical name.

The concern that the ICNCP rules for naming plants are not being properly followed is legitimate. Simply look up Black Lace™ elderberry in catalogs and university extension postings and you will find it time and again incorrectly referred to it as Sambucus nigra ‘Black Lace’, as if that were the proper botanical epithet. Developers of new cultivars are increasingly giving them non-sensical cultivar names (a violation of the ICNCP, which directs cultivar names to be a word or words in modern language). The result is that it’s much easier for the public to refer to the cultivar by the trademarked name than the botanical name. An example of this is the Virginia sweetspire Little Henry®. At the end of its patent period it can be sold by other nurseries as Itea virginica ‘Sprich’, an unrecognizable and non-marketable name (unless, of course they develop their own new trademarked name at that point). Nurseries and breeders certainly deserve to protect their breeding investments and be able to profitably market their stock, but hopefully not at the cost of proper nomenclature. Let’s not forget that the reason the International Code of Nomenclature for Cultivated Plants was developed in 1952 was to create accuracy and standardization, and help avoid confusion among cultivar names.

References
http://extension.oregonstate.edu/news/story.php?S_No=820&storyType=garde
http://www.ishs.org/sci/icraname.htm
http://www.plantdelights.com/Tony/trademark.html
http://www.planthaven.com/pdfs/PatentFAQ.pdf
http://www.rdrop.com/~paul/main.trademark.html