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Patents & Trademarks

Abiding by Plant Trademarks & Patents

We want to state loudly and clearly that Flowers by the Sea carefully abides by plant trademark and patent laws.

Trademark Laws

The law allows growers to apply for a license from the owner of a registered trademark when the grower wants to use the name to sell legally active, properly trademarked plants. However, most companies holding legally active registered trademarks require purchase of plant starts from their companies.

We also comply with trademark law by publishing registered trademark names correctly when the trademarked names have not become invalid, which is also referred to as becoming "generic." This means that if we were to publish a registered trademark name, we would place the trademarked part of the name at the beginning of the entire plant name followed by the registration mark. This would be followed by the plant’s scientific name, and we would never place the registration mark at the end of this whole shebang. We capitalize cultivar names and place them inside single quotes. We use all lowercase letters for varietal names and don’t surround them in single quotes. We dot our “i”s and cross our “t”s. Here are some fictional examples of wrong and right ways to create and publish trademarked names:

“Marlene® Autumn Sage ( Salvia greggii ‘Marlene’)
Why: The trademarked name should not be the same as the cultivar title.

Right but Nonsensical
Marlene® Autumn Sage ( Salvia greggii ‘R23wixwax’)
Why: ‘R23wixwax’ is gobbledygook.

Right and More Sensible
Peachy Keen® Autumn Sage ( Salvia greggii ‘Marlene’)
Why: Everything is in the right place, the trademarked name is different from the cultivar name and the cultivar name looks and sounds reasonable. Cultivars are often named after people.

Peachy Keen Autumn Sage ( Salvia greggii ‘Marlene’®)
Why: The registration mark is in the wrong spot.

Although we follow plant trademark laws, it doesn’t mean that we like the way they are enforced. One thing that troubles us about registered trademarking is the name confusion caused by the U.S. Patent and Trade Office’s lax enforcement of the International Code of Nomenclature for Cultivated Plants. The ICNCP, which was created in 1952, states that genus and species names should be written in Latin and that cultivar names should be pronounceable English that make some sort of sense. However, an increasing number of plant developers are opting for cultivar titles that are neither recognizable words nor people’s names.

When planning to apply for registered trademarks, developers too often give new cultivars scientific names that are neither memorable nor make sense (remember our fictional Salvia greggii ‘R23wixwax’?). Then they give the plants attractive registered trademark names. They do this so that other growers will pay them licensing fees to use the good names instead of the nonsensical cultivar titles.

Another equally enterprising grower might submit an additional registered trademark name for the same plant in order to not pay a licensing fee for “Marlene® Autumn Sage.” Then customers might end up buying Roberta® Autumn Sage (Salvia greggii 'R23wixwax') -- the same plant as Marlene. This gives us a great, big headache, because it makes it difficult to track plants and it foists confusion on customers. Ownership of a plant’s popular trademarked name isn’t sufficient for many plant developers. They take possession one step further by applying for plant patents giving them sole ownership of specific genetic material.

Patent Laws

The practice of patenting plants or life in any form has been increasing steadily since 1980. That was the year that the U.S. Supreme Court’s pivotal decision Diamond v. Chakrabarty gave birth to our current GMO biotechnology boom. In that case, the U.S. Supreme Court ruled that genetically modified bacteria used in research could be considered a useful invention and would therefore qualify for what is known as a “utility patent.”

As yet, the horticultural industry isn’t much affected by plant utility patents. However, it’s not difficult to envision a time when research and development companies will begin to lay claim to newly discovered cultivars, for example, to create and corner the market on useful medicines.

Nevertheless, at present, the main types of U.S. patents of concern to the horticultural industry are ones based on the 1930 Plant Patent Act and the 1970 Plant Variety Protection Act. Both kinds allow their recipients to gain sole ownership of specific plants. Then the patent owners can restrict use of these plants to growers they select and who pay hefty licensing fees.
Please peruse our report Understanding Plant Patents and Trademarks for complete information about:
• Scientific naming of plants
• Terminology involved in trademarking and patenting
• The difference between patents and trademarks
• A historical timeline related to plant patenting and trademarking and
• How FBTS follows the laws.

We do sometimes apply to be licensees of other patent holders, including the cheerfully rosy Salvia x 'Wendy's Wish' discovered by its patent-holder in an Australian garden. We like it that the owner donates a portion of royalties to charity. So we became one of the first U.S. nurseries licensed to propagate Wendy's Wish.

And we sell our own patented and patent pending varieties, such as VIBE 'Ignition Purple' and BODACIOUS 'Rhythm and Blues'

Please remember that we are always willing to answer any questions that you may have about the information we publish and the plants we sell. Just contact us.

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Take a Quick Look at a group of Salvias
Take a Quick Look at a group of Salvias
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Plant is doing well but not yet the showy plant described. Providing great late summer color and survived a week of 100+ temps without any attention.
Ms. linda allen
Sep 7, 2017