North American Fruit Explorers mailing list at ibiblio

[Ginda Fisher <ginda@concentric.net>]

You can trademark a name, but you can also patent a plant.  A patent 
protects the thing itself from being copied, not just its name.  To get 
a patent, you have to show your "thing" is "new".  So you couldn't 
patent two burgers with special sauce, etc.  In general, patented plants 
may be bred but not cloned by people who own a copy of the plant, but 
not the patent.  In some cases of genetically engineered plants, it is 
the gene itself which is protected (not just the combination of genes) 
and it is not even legal to breed the plant.

If you grow corn downwind of a patch of patented, genetically engineered 
corn, it might be illegal for you to plant your seed, because it may 
have been pollinated  by your neighbor's protected plants.

I think that non-propagation agreements cover plants for which a patent 
has been applied, or plants for which the breeder is thinking of 
applying for a patent.   In this case, the breeder asks you to promise 
not to propagate the plant so that if he applies for a patent, the plant 
is still "new", and not in the common domain.

(I also have no law credentials, just repeating stuff I think I've heard 
from good sources.)

Best,
Ginda Fisher


On Saturday, February 2, 2002, at 08:11 PM, k9kj2000 wrote:

> A trademark protects the name, not the item itself.  So someone else
> can market clones of that "Kitty" pawpaw, but better come up with a
> different name.  Perhaps "Roil Rivera".  Similarly, you can sell a
> hamburger assembled from two all beef patties, special sauce,
> lettuce, etc., but don't call it a Big Mac.
>
> I've been curious about non-propagation agreements, which nurseries
> require be signed before shipping some varieties.  Some "Ben" series
> black currants are affected, as are the new NY plums.  I even have an
> anthurium that is covered by one, although I didn't have to sign
> anything for that.  Here's an interesting Australian site that talks
> about this kind of thing:
> http://members.ozemail.com.au/~hsca/Summ_9501.html.  Their laws are
> different, but probably operate in a similar fashion.
>
> Bruce W. in CT
>
> --- In nafex@y..., "edforest2010" <edforest55@h...> wrote:
>> Lets say a new pawpaw has been bred by Fred. Fred names it "Kitty"
> and
>> trademarks "it".
>> What is the "it" that he is trademarking? The fruit or the name or
>> both? Is it legal for amateurs to propagate Kitty? Is it legal to
>> propagate Kitty and sell it using a different name? (Of course I'm
> not
>> implying that to do so would be ethical).
>> I recall a bit of history on a pear, I think it was Comice, back in
>> the depression I think it was, the pear industry was suffering but
>> some party, say Company A, thoought of some fancy name for Comice
> and
>> marketed it under something like "Royal Gourmet" and sold it in
> fancy
>> boxes styled for the rich and famous, well, it worked and sold very
>> well and at very high prices. No one seemed to know that it was
> just a
>> Comice. The name was trademarked, but of course we could go on
>> propagating Comice as "Comice" but not as Royal Gourmet.
>> So I'm assuming that the same would apply for Fred even though he
>> spent a lot of time and effort in breeding "Kitty", if he only
>> trademarks it then it is not protected from Evil Nursery who
>> propagates it and sells it under a different name.
>> Is that the way it goes? And that IS a question, I find this whole
>> business clouded in mystery with no one willing to talk about it
> for
>> fear of being sued for giving legal advice.
>> Kevin B
>
>
>
>
>
>
>
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