Patented Plants and Trademarked plants.

Don’t propagate Patented Plants is a comment we see very often. This is a question that we think is often very misunderstood. Here are some clarifications as we see this issue. Please don’t take this as legal advice as we are not attorneys although we have discussed this issue with an attorney who completely agrees with us. First, it’s important to understand what a plant patent is, and likewise what a trademarked plant is, they are very different, but are considered part of what is known as intellectual property law. Patents and Trademarks are administered in the United States by the US Patent and Trademark office. Keep in mind we are only discussing US Plant Patents and Trademarks. To see how to obtain a Patent, specifically for a plant see U.S.C. Plant Patents.

What is a Plant Patent?

A patent protects an invention, or an innovation that is newly developed, and the United States government decides it is worthy of protection. Patents are granted in order to reward the inventor so they can profit from their creation. In the case of plants, these patents last 20 years, issued from the date of filing. The patent covers asexual reproduction of the plant. Thus you cannot reproduce the plant via taking cuttings and selling the offspring plants. Plants are issued a PP number which is for Propagation Prohibited and this will generally be found on Patented plant tags.

The plants we see that are Patented are generally Hybridized plants – new plants created when  you cross pollinate two plants.  So these are new sub species of other plants. For example, someone might develop a more red azalea, and the US patent office determines it is special and unique enough to give it Patent protection. In these cases, we completely agree that the inventor is entitled to legal protection, and it is well deserved. Patented plants cannot be asexually propagated unless the Patent holder grants a license to a grower to propagate and sell that plant. Patent holders do give growers the right to propagate plants and a royalty is charged. Finish growers can buy Patented Plants, grow them out and sell them but they must pay a royalty.

Can you grow Patented plants?

Yes! Often when we are buying plant starts or liners, we notice we are paying a royalty. This is the fee paid to the Patent holder to allow us to grow out and sell the plant. Remember we do not get the right to propagate and sell offspring plants, but you can sell Patented plants. Patented plants are generally sold with tags that are to be included when the finish grower sells the plant. The tags clearly identify that the plant is Patented and cannot be propagated and sold.

What is a Patent Royalty?

The royalty payment to the patent holder is paid by the grower licensed to propagate that plant. You may grow these types of plants out and sell them as larger plants. Generally a Patented variety of a plant can command a premium price and you can more than make up for the small royalty you paid ($0.35 to $1.00 per plant). This is a great activity to do if you want the most current hybridized plants available in the market and you think they will sell well for you. You simply pay the royalty when you buy your plants. You must mark the plants properly with their name and a proper tag. The tags usually come with the plant when you buy them. What you cannot do with a Patented plant is to propagate it. We absolutely cannot and do not propagate Patented Plants.

Can I propagate and sell a Patented Plant?

The answer as you can guess by now is NO! When we go to a big box store or nursery and buy plants at the end of the season at 50% off we do not buy patented plants. We cannot legally propagate them to make more plants. We probably could not even some small buy that small plant grow it out and sell it because we would have no record of paying for The royalty. Again we completely agree with the US patent system, and do believe that hybridize of plants are completely due royalties, and we would never knowingly work around or away from the system. It’s a good system, and it rewards people for hard work.

A Patented Plant Tag.

 

Notice this plant has both US protection and protection in Canada.

How do I know if a plant is Patented?

Generally when buying a plant the tag will mention a Patented and may also be marked “Cannot be Asexually Propagated” Steer clear of these plants. You can also look up plants by name on a few databases we have found. This is our favorite from the University of Maryland Plant Patent Database. A list of a large holder of plant Patents is Proven Winners, here is the list of Proven Winners, Patented Plants. Here is pretty good list of Patented Hostas.

Finally, if you have any question about a plant you’re buying on clearance from a big box store or a grower you can Google it. Type the name of the plant in question and very quickly find out if it’s Patented or not. You’ll be pleasantly surprised to find most plants are not on the list, or have come off patent. Keep in mind there is plenty for you to grow without worrying about the issue of Patents.

There are some plant types. We are patenting is more common and you should be more careful. Plants such as hydrangea, azalea rhododendron are very often hybridized and you may find some that are patent. Be careful, google the name, and look them up , the information is available. We grow mostly more woody shrubs add tree plants, and we find very very few of those are packages.

What is a Trademarked Plant?

Trademarks are also issued by the US government Patent and Trademark office. One must register trademarks, names, and marks (Think Logo) with the US government to gain legal protection. Any person or company can register a name or a mark such as a logo. Trademarks are much different patterns in that a trademark holder did not hybridize or invent a new plant. Trademark holders do not own the rights to the propagation of that plant. They own a name of a plant. Simply adding , a word to a name like Green Giant Arborvitae such as West Coast or East Coast Arborvitae does not mean that the plant is patented. The Green Giant arborvitae is not currently patented although it may have been in years past. Patents do not last forever and once it is off Patent, you are free to propagate it.

What you cannot do however is use someone else’s trademark name or mark if someone registered a trademark name of West Coast Arborvitae you cannot use that West Coast trademark name. You can still sell Green Giant Arborvitaes and propagate them. The classic example of all this is Apple Computer. Anyone can make computer, but Apple by combining Apple and Computer made for themselves a trademarkable name. Note the words Apple and Computer alone would not be trademarkable but combined they are.

Why do people trademark plants?

The reason people trademark is to make a plant seem special. Through marketing they would try to make the plant something that they may develop a following for. People do fall for some marketing or might feel a West Coast Arborvitae is different or better than a Green Giant Arborvitae. In reality the Green Giant is a cultivar named Thuja occidentalis and is a Northern white cedar.

Think of hammers or Apple Computers as an example, one that is uniquely designed and offers a new function might be patented. This new hammer might also receive a Trademark for a new name or mark. Then think of two identical hammers. One might be called the Blaster Hammer and the other just a 16 oz hammer. In this case the owner of the hammer named the “Blaster Hammer” might seek a Trademark for the name of the hammer. Don’t get too hung up on Trademarked plant names but don’t use any when your selling plants.

What should you do about Patented and Trademarked Plants?

What we suggest is for you to buy liners or transplants, propagate plants, grow them, sell them, but work with the common plants. Never try to propagate and sell Patented plants. Will the grower chase you down and try to enforce their Patent? Probably not but Patent holders are due a royalty and right is right.

You can buy, grow and sell Patented plants as long as you pay the propagator the royalty, use the provided tags, and do not propagate these plants.

We avoid Trademarked plants unless the name is just an embellishment to a common plant. A Green Giant Arborvitae is not a patented plant and no matter what name you add to that doesn’t change it. We would grow, propagate and sell these as Green Giant Arborvitaes.

There are so so many you will never run out of them, and you will never run into an issue when operating your plant nursery. If you would like to grow out and sell some Patented plants, that may in fact also be carrying a trademark name, please go ahead and do that there are growers who will sell these plants to you, you will pay a royalty, but it’s small, and you can sell some newly hybridize plants if that is the way you want to take your nursery. we have never run into this and choose to mostly avoid selling hybridize plants of any type primarily because we also like to propagate them. We also find that people don’t come in looking for a specifically named Green Giant Arborvitae. They come to buy a Green Giant Arborvitae.

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