Trademarks in ornamentals

When perusing catalogues a feature of naming plants becomes readily apparent, and that is the use of the registered and trademark characters, ® and ™. A trademark is legally defined as a word(s) or symbol which identifies the place of origin of a product. Conard-Pyle's Star™ trademark is a good example. The consumer recognizes that roses with the Star® designation are from Conard-Pyle and can make an assumption of quality with this information.

Confusion arises when a company uses a trademark name as a cultivar name. For example, a particular holly is often designated in the trade as Ilex x 'China Girl'. Many of you will recognize this name. If, however, you were to come upon Ilex x 'Mesog', would you expect to know this holly? Probably not. In fact, the cultivar name for this holly is 'Mesog' and the trademark is China Girl™.

This naming practice violates both trademark specifications and nomenclatural rules, but it is becoming increasingly common. The reason is profit. If a breeder patents a new plant, he restricts others from propagating it without paying royalties. The patent is in effect for 17 years. A trademark may be renewed indefinitely. So when the patent expires, anyone may propagate the plant, but they must call it 'Mesog' which does not have any commercial recognition factor. The name China Girl™ is still the property of the original producer.

In the USA, the ™ symbol may be used when trademark rights are claimed in relation to a mark, but the mark has not been registered with the government trademarks office of a particular country or jurisdiction, while the ® is used to indicate that the mark has been so registered. It is not mandatory to use either symbol, although the force of convention is such that the symbols are widely used around the world. However, in various jurisdictions, such as the EU, it is unlawful to use the ™ symbol in association with a mark when that mark is not registered. Either symbol is typically placed in the top left- or right-hand corner of a mark.

Comment:
Users of computers running the Microsoft Windows operating system can enter the ™ and ® characters into text by holding down the Alt key and typing 0153 and 0174 respectively into the numeric keypad.