One of my primary hobbies is planning and working in my garden. One of my first decisions was to plant azaleas; I needed color and it feels like my civic duty as a Houstonianto have at least one. After researching my options, I selected Encore® Autumn Sunset™.
While I was working on my plant patent display (see last week’s blog post), I was both surprised and perplexed by lists of unrecognizable, unmarketable plant cultivar names in the Patent Full-Text and Image database (PatFT). I thought I should see more familiar names. If you’ve ever visited an aboretum or done some landscaping, you’ve likely noticed fun, playful plant names related to memorable characteristics and perhaps understand my confusion.
I expected to find Encore® azaleas instead of unrecognizable character strings (Image 1). No plant nursery or home improvement store I know carries ‘MNIHAR09’ azaleas. The same goes for crape myrtles; this fall, I purchased one called Dynamite® that I knew was patented.
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| 1. Azalea cultivars in the PatFT |
I also spent time scrolling through strawberry patents. (No joke: I bought a strawberry plant and wanted to find its patent.) While I’ve certianly seen Driscoll’s® berries in stores, and I’ve seen some given fanciful names (Image 2), never have those names included anything like ‘DrisStrawEighty’ (Image 3). I felt like I stepped into a parallel plant universe!
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2. Strawberry names, https://www.careersatdriscolls.com/driscolls/berries/, accessed 3/22/2022 |
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| 3. Unrecognizable strawberry names |
And finally, I noticed that many of the patented plants given creative names tended to be from smaller nurseries, individuals, or older patents (Image 4). Why would those likely to have the strongest, most up-to-date marketing strategies neglect an obvious way to build recognition?
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| 4. Older strawberry patent names |
You may already have figured out what puzzled me for so many days, maybe due to the proper plant names’ crediting.
What I hadn’t noticed were the registered ® and trademark ™ symbols. I don’t know if it is because they’ve become so ubiquitous in commercial zones that I ignore them, but only towards the display’s completion did I finally take note.
It happened when I searched the Internet for more pictures of tentatively identified campus plants. I looked up the ‘Whit III’ crape myrtle. Everything clicked into place when a result identified ‘Whit III’ as Pink Velour®. Of course companies created different marketing names to trademark or register!
Think about it: plant patents are protected only 20 years from the filing date. Trademarks can be renewed as long as the mark continues to represent the goods or services originally indicated and remains in commerce. So ‘Whit III’ isn’t protected today by its patent filed in 1998. But the Pink Velour® crape myrtle has a protected word mark name, and widespread industry recognition. Someone may manage to breed a Pink Velour® crape myrtle, but could never market it with that recognizable name.
I've also learned more about the difference between patented and trademarked plant names since I first posted this entry, from University of Tennessee's Department of Plant Sciences "A Green Industry Guide to Plant Patents and Other Intellectual Property Rights". There is a very delicate balance required to keep a plant's trademarked name; if it becomes known as the common name of a plant, a name may lose its status!
Visit the Trademark Status & Document Retrieval (TSDR) site for PINK VELOUR® here.
See the TSDR sites for ENCORE® and ENCORE AZALEA® while you’re at it!
DISCLAIMER: References to particular products, patents, trademarks, service marks, services, companies and/or organizations in this post are for illustrative or educational purposes only and do not constitute or imply endorsement by the Kelley Center, Fondren Library, Rice University or any of its affiliates.