trademarks, cultivars & ICNCP

Wilbert Hetterscheid VKC at PBN.AGRO.NL
Wed Feb 5 07:45:34 CST 1997

I may be meandering off a little from the original
"patent/trademark" message but I want to comment on a few
remarks made in this discussion.

Kyle Williams states that the US Patent act prohibits the
asexual propagation of patented plants without permission. I
am not fully aware of the US Patent act but if it is based on
the UPOV Convention (the international treaty describing rules
and regulations concerning Plant Breeders Rights' protection
of new cultivars) then ANY propagation of a cultivar is prohi-
bited, not just asexual. There are many cultivars that main-
tain their integrity WHEN reproduced sexually and they also
fall under the treaty. Cultivars that can only be reproduced
asexually in order to maintain their integrity, automatically
disappear when reproduced sexually and therefore reproducing
them that way is superfluous anyway.

Joseph Laferriere mentions "registering cultivar names as
trade marks" and he touches a big can of worms in commercial
plant breeding and trading. The International Code of Nomen-
clature for Cultivated Plants (ICNCP, 1995) expressly claims
that this is not possible under its rules. The reasoning is
simple: a cultivar epithet ("name") is the only available
device to communicate worldwide about a particular cultivar.
As soon as that epithet is trademarked, it looses its univer-
sal applicability because its use is immediately limited to
occasions where the trademark owner allows it to be used. The
epithet has become the PROPERTY of the trade mark owner and
that is contrary to what a cultivar epithet is for.

David Stevenson rightly has concluded this in his last para-
graph. He also has seen that reality is different. There ARE
old cultivar epithets (and new ones) trademarked in this
world. I have had extensive discussions about this with a US
lawyer, who once was president of the American Rose Society,
so he knows his cultivar business. He told me, and published,
that in the USA it is legally IMPOSSIBLE to trademark a culti-
var epithet. The mere fact that a patent office registers such
a trademark is bad as it is but such offices do not actively
pusrsue cultivar registers to check the validity of the mark
in that respect. Same here in Europe.

The above reasoning is supported by the UPOV treaty that
forbids any additional rights (such as trade mark rights) to
be claimed on a cultivar epithet once it represents a patented
cultivar. Of course, the problems start when a cultivar epi-
thet represents a non-patented cultivar and lawyers tend to
say that there is no law against that. I wonder, since ICNCP
is an official UNESCO (IUBS) document and no lawyer has as yet
been able to tell me just HOW legally unimportant this docu-
ment is in this light. They are usually totallyu unaware of
the status of ICNCP.

For those who still think that a cultivar must be a clone: NO!
It must be an assemblage of cultivated plants that is "Dis-
tinct", "Stable" and "Uniform" (DUS norm) and for that a
cultivar doesn't have to be a clone. The Plant Industry has
created many cultivars that conform to this norm and are not
clones (e.g. F1 hybrids).

Wilbert Hetterscheid
Cultonomist & amorphophallophile

vkc at

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