Deb Babcock: Trademarked and patented plants
October 28, 2012
Many of us find this naming of plants very confusing as it is, without the added complication of trademarks and patents and non-trademarked “marketing” names that some nurseries use to sell plants that they want to appear as exclusive to their company.
According to the International Code of Nomenclature for Cultivated Plants, cultivar names must remain free for everyone to use. These cultivar names are registered with an International Cultivar Registration Authority and are the same throughout the world, making it much less confusing for plant lovers to truly identify a plant. When you look up a plant name, the most accurate way to do so is to find the botanical name (the genus, species and hybrid) followed by a cultivar name, which is usually capitalized and placed between a set of quote marks. Before 1959, cultivar names were often in Latin; modern cultivar names are now in modern languages.
While it's unlikely the "Patent Police" are patrolling the gardens of Routt County to make sure we're not illegally propagating plants, it behooves us to know which of our plants we're allowed to propagate and which ones it is illegal to reproduce.
If the name of any of the plants in your garden is followed by an R with a circle around it: ® or a small ™, it means that the plant has been officially registered and trademarked with the U.S. Patent and Trademark Office or that it has been claimed but not yet registered. You are allowed to reproduce it and can even sell it for a profit, but you cannot market or publicize the plant by the trademarked name or come up with another trademark of your own for the same plant. Trademarks last for 10 years and can be renewed again and again.
You are allowed, however, to refer to the plant by its cultivar name. For example, my Plant Select™ Silver Blade™ Evening Primrose is trademarked while two other primroses in my garden are not: Evening Primrose Oenothera Missouriensis and Showy Primrose Oenothera speciosa. Should I propagate any of these, only the name Silver Blade cannot be used when I refer to that particular plant. Instead, I must refer to the Silver Blade™ by the botanical name Oenothera macrocarpa v.incana or the generic common name, Evening Primrose.
If a plant is patented as opposed to trademarked, it will have a patent number or other patent indicator on the label. Patented plants may NOT be reproduced, sold or used in any manner whatsoever without the owner's permission or until the patent term of 17 or 20 years has expired. Patents are not renewable, but during the patent period, they give the owner exclusive control over the plant. Generally, you are only given permission to grow the plant in your personal garden when you purchase a patented plant. If we are caught propagating a patented plant, the patent owner has the right to prosecute us through the services of a registered patent attorney or agent.
When we talk about propagating plants, we're talking about plant reproduction that happens by dividing bulbs and rhizomes or roots, taking cuttings, grafting and budding a plant, and collecting and planting seeds, among other methods.
Since fall is a popular time of year to divide some plants that have overgrown their space and are crowding into other plants, take time to check whether your plants are patented, trademarked or not. The Internet is a good source for finding this information.
Deb Babcock is a Master Gardener through the CSU Extension Routt County. Call 970-879-0825 with questions.