[PBS] OT? What goes around comes around...

Kenneth Hixson khixson@nu-world.com
Tue, 24 Jan 2006 11:10:00 PST
Hi, All.  Hope this isn't getting off topic, but it does relate to any plant
grown, and the developers of new plants

>.Copyrights, Trade Marks, and Patents are three quite distinct forms of
>intellectual property.
         And, unfortunately, do not "protect" a plant that has a patent, etc.
They only provide a legal basis for a lawsuit, at the holder's expense.
If the holder of a copyright, trademark, or patent chooses to go to the
expense of a lawsuit, and provide legal verification that the plant in question
is in fact the one covered by the legal status granted, the violator looses
the lawsuit, and the holder can collect damages.  The damages must
bear some relationship to the actual damage suffered, which is in itself
a difficult thing to establish.  If a small nursery propagates and distributes
twenty roses which are patented, how much will the court grant in damages?
Depending on the court, it could be nothing, or a few hundred dollars.
The biggest damage is for the legal fees involved in prosecuting the case
in the first case.
         If the small nursery involved doesn't use the trade marked, 
or patented name, and simply claims the plant is a seedling of the variety
in question, even DNA evidence may not provide a legal basis for damages.

         One related example is a fruit tree catalog I recently received.
They have trade marked American names for fruit varieties originally
named in Russia, Turkey, etc, with the original names given in the description
of the variety--at least for some of the varieties.

         Another example was given by my nursery management professor.
A Portland, Oregon nursery trademarked the name of a holly variety--
Possibly Rederly (TM). (I've forgotten, it's been years)  For years other
growers assumed it was a patented variety and wouldn't grow it.
Then someone realized it was trademarked, and could be propagated
and sold, but the name Rederly (TM) couldn't be used, so they simply
renamed it, and sold their plants under their name, so there were several
names for the same variety of holly, each nursery using their own name.
         All perfectly legal under the law.

         Another question is, what were the laws of the two countries at the
time all this was happening?  It has been frequently been noted that the
Dutch show no hesitation about taking American lily varieties, renaming them,
and distributing them without paying royalties.  They also use names already
in commerce, such as L.. Red Knight.  There have been at least three Red Knight
lilies, so which one are you getting if you choose to buy one?  If you buy 
Red Night,
what will you get?  Are they deliberately trying to trade on the name of an
established and well liked variety, or are they simply so lazy that they don't
bother to check with the well known registration authority (for lilies, the
British Royal Horticultural Society).

         Finally, even if the varieties involved were protected in some way,
is there any reason to believe that the Dutch growers involved felt it was
worth pursuing legal action?  If there was legal protection, and the Dutch
chose not to bother, the law ceases to be applicable.

         All this happened long ago, so to pursue it now, by people who
have little legal stake in the outcome, seems rather futile.  If it wasn't
done at the time, why now?


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