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The Tabberone™ Archives These articles concern what we consider major trademark and copyright issues. They are usually reproduced with the original source referenced. Bear in mind, these articles are copyrighted and commercial use without permission of the authors may be considered infringement. The intended use here is educational, commentary and non-commercial. The reason they are reproduced in the Tabberone™ Archives, as opposed to just providing a link, is because links disappear and pages are removed. That presents a messy confirmation process that is annoying to the browser (you) but also presents a credibility issue. We do not claim any rights in these pieces. Do not regard the absence of a copyright statement or © to mean the article is not copyrighted. Some sites do not have a copyright statement. When an article or a comment is posted on the internet by the copyright owner, the owner is seeking a world-wide, 24/7 audience; sometimes for a limited amount of time, sometimes indefinitely. In essence, an internet posting intentionally relinquishes one's copyright for exclusivity because the owner has posted it on the internet to been seen by everyone, everywhere. The Tabberone™ Archives non-commercial duplication of the posting is simply a continuance of the original wishes of the copyright owner. We post these articles for reference, for commentary and for confirmarion of our position.

Source: http://www.plantdelights.com/Tony/trademark.html April 8, 2009 - excerpt from article.

Name that Plant - The Misuse of Trademarks in Horticulture by Tony Avent updated 12/25/2007 Court Cases Until 2006, one of the few cases that might have gone to trial was when Iverson Perennials tried to enforce a legal trademark they owned for the name Scabiosa 'Butterfly Blue'. The unpatented plant had been previously published with 'Butterfly Blue' as the cultivar name, so they were wrong in both trying to trademark a cultivar name and also by using their trademark improperly on a single product. Fortunately, a number of nurseries banded together against Iverson's and the trademark infringement case was abandoned before it reached court. Finally, in 2006, a case of improperly used trademarks actually reached the courts in Van Well Nursery Inc. et al. v. Mony Life Insurance Company et al. (decided March 16, 2006). In this complicated case, Mony Life Insurance Co. acquired property from A/B Hop Farms due to a defaulted loan. The property contained apple trees known as SmootheeŽ and Scarlet SpurŽ. When Mony Life Insurance Co. tried to sell the land by mentioning that it contained SmootheeŽ and Scarlet SpurŽ apple trees, Van Well Nursery and Hilltop Nurseries sued for trademark infringement. Their contention was that the apples trees were actually the cultivars 'Snipes' and 'Gibson', although they had marketed them under the trademark names SmootheeŽ and Scarlet SpurŽ. The Lanham Trademark Act, section 15, says is not the actual misuse of the trademark for a single product that makes it invalid, but instead the perception of the public that the trademark name is the product itself that renders the mark invalid. The judge in the Van Well case correctly ruled that in the public domain, the apples were known as SmootheeŽ and Scarlet SpurŽ, and therefore the legally registered trademarks were now invalid, because they had become know as the product instead of the source of the product. (The SmootheeŽ trademark was actually not immediately cancelled, only because the owner was not a party in this particular lawsuit.) The Scarlet SpurŽ trademark was cancelled despite the fact the trademark owners had followed their legal advice and always included the registered trademark symbol along with the correct cultivar names when advertising the apples. The case hinged on the age-old adage in determining the validity of a trademark. A trademark must tell "who you are" and not "what you are." This case has huge implications for those in the nursery industry who have improperly used trademarks to market individual plants for the last several decades. The case illustrates that despite best faith efforts on the part of the trademark owners to keep their trademark names valid, it is impossible once the public views the trademark name as generic. Not only will the industry be left with shameful nonsensical cultivar names that will exist as long as the plants are grown, but nurseryman who have spent large sums of money on trademarks and trademark attorney fees and then used the trademarks in violation of US Trademark Law, will be left feeling the financial sting with no way to recoup their losses. Once the Federal Trade Commission (FTC) wakes up and is urged to act as they were recently with the discrepancy of advertised and delivered pot sizes, those who market individual plants under trade names will have another fight on their hands. It would be nice if nurseries, who indeed are ethical, but Misinformed would take the lead in reversing this terrible trend. It would also be a nice change if groups such as the Perennial Plant Association (PPA) and the American Nursery and Landscape Association (ANLA) would take a strong position on the long-term detrimental effects of dual plant naming through trademarks, both to the industry and the consuming public. The best way to end this trend is for reputable nurseries to take a public stand against this confusing practice for the long-term good of horticulture. Short of this, it is going to be up to the Garden Writers Association (GWA) and the American Public Gardens Association (APGA) 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. Copyright Š 1997-2008 Plant Delights Nursery.Inc.