patents and trademarks

Dave Stevenson steve021 at MAROON.TC.UMN.EDU
Tue Feb 4 08:44:50 CST 1997


It is my understanding that patents apply to the invention, in this
case a plant, not the name.  Although the patent process
requires that a cultivar name must be assigned to the plant.  Since
species are not an intentional product, I surmise that they cannot be
patented.  In the case of genetically engineered plants, I would
think that they would always be considered cultivars rather than
species.

Trademarks should be intended to indicate the maker of the product
and there by the "quality" of the product.  The trademark should
not be intended to be an identifier of a specific item (plant
cultivar or species).  It is my understanding that if  a trademark
begins to be associated with only one product then it becomes
increasingly difficult or impossible to defend.  Kleenex or Tylenol
would be good examples of this.

In regard to plant species, one could probably create and defend a
trademark such as "Super Fine Maple" and sell a "line" of Acer rubrum
under it.  The trademark referring to the nursery of origin and the
quality of the plants.  In order to patent one of these maples it
would have to be given a cultivar name (and would probably have to be
a clone)

To take this further, it was also my understanding that a existing
cultivar name could not be made into a trademark, but increasingly I
am encountering nursery catalogs in which long standing cultivar
names have been designated with a TM or (R) and the plant given a new
cultivar name.  The (R) would indicate that the trademark had been
filed with the US Trademark office.

\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/\/
David H. Stevenson
Curator of Plant Collections
Minnesota Landscape Arboretum
3675 Arboretum Dr.
Chanhassen MN 55317 USA
612-443-2460 ext. 168
mailto:steve021 at maroon.tc.umn.edu




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