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 This is a continuously updated archive of the Aroid-L mailing list in a forum format - not an actual Forum. If you want to post, you will still need to register for the Aroid-L mailing list and send your postings by e-mail for moderation in the normal way.

  RE: [Aroid-l] Trademark Names/Aroid book
From: "Wilbert Hetterscheid" <hetter at xs4all.nl> on 2006.12.03 at 08:08:59(14889)
I guess I might add a few words to this discussion, as
co-author of the nomenclature code for cultivated plants.

A most important thing to understand is that plant patents
basically grant ownership of material, i.e. true plants and planting
materials, propagation materials etc. Trade marks are designations primarily to
indicate origin of products in terms of companies. This is the ideal world: a
new cultivar becomes patented and the cultivar name is entered in an official
register of patented plants. In the trade it is required that every party uses
that cultivar name. Because of this requirement, it is principally
impossible that the part of the cultivar name that identifies the cultivar (e.g.
'Beauty' in Begonia 'Beauty') is at the same time owned by a single party
as a trade mark for the same kind of products (plants in this case). The
impossibility lies in the fact that a trade mark owner can prohibit the use of
his trade mark by third parties. So this would mean that a trade marked cultivar
epithet (the name part between de quotation marks in a full cultivar name) can
only be used under restricted circumstances, the restrictions set by the trade
mark owner, whereas the FUNDAMENTAL function of a cultivar epithet is to
identify a particular cultivar all over the world, WITHOUT any restriction of
its use in any part of the world. In fact this is the general function of a
cultivar epithet, be that in a patented or a non patented cultivar. One must be
able to write, talk etc. about a cultivar all over the world and therefore it
must have a universally applicable, free name.

Adding a trade mark to a cultivar name is o.k. but it
must never take its place.

Of course, the world is not ideal and therefore a multitude
of situations exists where cultivar naming and trade mark ownership
clash. Many breeders have chosen to give their new cultivars epithets
that have no meaning in a language and are therefore hard to memorize by people.
Instead they add to the epithet a well-sounding easy-to-remember trade mark and
thus invite people to memorise the trade mark and forget about the cultivar
name. This has, to their minds, advantages in at least two
situations:

1) in quite some plant genera many many cultivar
epithets have been proposed and accepted in registers over the years and it
becomes increasingly difficult to add to that yet another new name that also has
a great commercial attractiveness. This claim is heard very often but is
also criticised for being an excuse of those without imagination. A
way out would be to allow the re-use of cultivar epithets in a genus under
strict regulations. This is what is being explored momentarily by
statutory registration (plant breeder's right / plant patent). It is
already in use by European Plant Breeder's Right. However, UPOV (the
organisation that is responsable for Plant Breeders' Rights worldwide) has
accepted that cultivar epitthets may be given in the form of a code.
This effectively frustrates the attitude towards introduction of
re-use of cultivar epithets. An unfortunate decision for those who promote
the use of epithets with a linguistic meaning.

2) in many countries where patent law hardly exists or is
badly enforced, patented cultivars are illegally propagated. Breeders of
patented cultivars try to get their trade marks used as indicators of a
cultivar, or stated differently (as under 1) they try to "replace" the cultivar
name by the trade mark in the heads of consumers, traders etc. Once a
cultivar becomes popular and the trade mark with it, illegal propagators will
have to use the trade mark when they want to get money out of their illegal
actions because under any other designation, the cultivar would not sell
that well. However, since a trade mark is owned by someone (often the breeder)
it is an extra illegal act to use that trade mark without the consent of the
trade mark owner. In using also that trade mark illegally, the illegal
propagator commits yet another crime. Also if he uses the trade mark, the
material is easily tracked down by the trade mark owner and he can
stop materials being imported into the countries where the trade mark is
registered. So this provides an extra way of trying to
avoid succesfull trading in illegally propagated
material.

All in all, the best way to co-exist would be to use both
cultivar name and trade mark in trading. Trade marks are basically o.k. as long
as they don't interfere with the free use of cultivar names. Pity is that trade
mark use has become more important to many breeders than carefully thinking of
"suitable" cultivar names.

Wilbert

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