You can read Tony’s entire piece here–and it’s well worth reading–but the gist of it is that trademarks are intended to be used to designate a brand, not the name of an individual item. Avent uses Tylenol as an example. That’s a trademarked brand, not a specific product. Under that brand, a variety of individual products are sold, like Tylenol Pain Reliever. Tylenol Pain Reliever can be a patented product, subject to US and/or international patent law, but it’s not a trademark. The trademark refers to the brand "Tylenol."
Got it? OK, now remember that we’re not talking about patents. New plant varieties can be patented, and breeders can make money on those patents. A patented plant must be somehow new or unique. A trademark, on the other hand, is simply a way of establishing a brand to indicate the source of the goods.
Here’s how Tony applies this to horticulture, reminding readers that the naming of plants is governed by the International Code of Nomenclature for Cultivated Plants, which sets out guidelines for Latin names and cultivar names:
The current improper use of trademarks in the horticultural
industry had its origin more than a half century ago. The worst culprits,
in the early years, were the rose and bedding plant industry. The rose
industry seems to have been the first to use nonsensical, non-conforming
names for plant cultivars, while the bedding plant industry completely
thumbed its nose at the Code by not even bothering to come up with
any cultivar names for most of their introductions…
A properly used trademark would be one such as Star® Roses,
which is used to market a large group of roses under a single umbrella
trademark. This trademark would have remained valid if they had not
then began using their trademark to also market individual cultivars
such as Rosa ‘Wezaprt’ as Bronze Star™ Rose and Rosa ‘Wezlavn’
as Silver Star® Rose….
This use of trademarks as secondary "pseudo-cultivar" names for
a particular plants violates both the spirit of the Nomenclature Code, as
well as US trademark law…
Avent concludes by calling upon trade associations, retailers, and garden writers to "identify plants by their one and only
cultivar name, and hopefully at the same time embarrass those who
persist in making up stupid nonsensical names for good plants and
illegally using trademarks to deceive the public."
Go, Tony! Meanwhile, I’m not ordering anything called a Lily Tree, even if I could lean a bicycle up against it.
Posted by Amy Stewart on January 3, 2008 at 5:10 am, in the category Taking Your Gardening Dollar.