What goes around comes around...

J.E. Shields jshields@indy.net
Tue, 24 Jan 2006 07:54:03 PST
Hi Jim McK. and all,

Copyrights, Trade Marks, and Patents are three quite distinct forms of 
intellectual property.

Written materials are implicitly copyrighted as soon as 
recorded.  Alphabets are explicitly exempt from copyright.  One or two 
words are not likely to be recognized as copyrighted out of context, but 
I've not looked into that in detail.

Trade marks must be formally registered with the US Patent Office to have 
any legal status.  Trade marks allowed to be used without the accompanying 
(R) mark may lapse into the public domain, e.g., I think that existing 
trade mark registrations on "coke" and "xerox" have been challenged in the 

Patents on plants are still -- in my mind! -- a bit vague.  However, they 
definitely have to be formally applied for and can be rejected by the 
Patent Office.  A plant is not protected in any way unless the formal, 
legal patenting process is followed.  Once a plant has been released into 
commerce, it cannot be patented retroactively.

Plant patents can protect a clone or protect a seed line.  The restrictions 
on use will vary, depending what is protected in the patent.  A patented 
variety (strain or clone) must have a patent name, and it must be unique 
and not have been previously used, e.g., as a trade mark or as a cultivar 
name.  So a given plant could have three names:  its designation in the 
patent, a trade mark, and a registered cultivar name.  The first two NAMES 
are legally protected; the registered cultivar name is not legally 
protected, but is only protected under the gentlemen's agreement of 
the  ICNCP.

One can use DNA to tell which herd of elephants poached ivory came 
from.  One can identify paternity of humans from DNA.  One could probably 
identify particular clones of tulips or daffodils from DNA, if anyone 
wanted to spend the money on it.  The DNA technology is there to 
differentiate between individuals from the same species, population, etc., 
but the will and financial resources to exploit it may not be.

Clear as mud?

Jim Shields

At 10:10 AM 1/24/2006 -0500, you wrote:
>In response to Jim Shields comments:
>When I wrote that post, I was thinking of the rights to cultivars as if they
>were copyright rights. My understanding of copyright for print materials is
>that - please excuse the clumsy phrasing - the process of creating a work
>eligible for copyright and the existence of the copyright are coeval.

Jim Shields             USDA Zone 5             Shields Gardens, Ltd.
P.O. Box 92              WWW:    http://www.shieldsgardens.com/
Westfield, Indiana 46074, USA
Tel. ++1-317-867-3344     or      toll-free 1-866-449-3344 in USA

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