What's in a plant name? Trademark vs. patent

Last week, we took a foray into the world of botanical Latin; that dark and murky path that can lead unsuspecting converts to a life of constantly concerned family members and neighborhood interventions. Who knew a few well-chosen Latin terms could convey so much about a plant — and have such an impact on one's home life!

This week, we leave behind that dark and murky path for the sticky mud of cultivar and variety names.

In the world of modern garden plants, it has become increasingly common for a simple species designation to be deemed insufficient. No longer does "sugar maple" or "common lilac" cut it. Most of our garden plants are represented in the trade by dozens, and in some cases thousands, of named selections (last time we checked, there were more than 40,000 named daylilies). These selections, or cultivars (cultivated variety in horticultural parlance), may differ from the typical species in any number of characteristics from flower size to disease resistance.

So far, so good ... but now we move into the mud.

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Anyone can name a new plant cultivar. There are basic rules to follow, but anyone can name a new cultivar for just about any reason. It is generally expected that a newly named cultivar will be somehow different from others already on the market — and here's one of the rubs — but there is no all-powerful genie of horticultural cultivar introduction that anoints new introductions.

If you want to name a plant after your favorite pet, your largest dust bunny or in honor of your child's first lost tooth, there's nobody out there to tell you that you can't do it.

But to make any money off your new cultivar you have to either grow tons of them and convince gardeners to buy them, or you have to convince commercial nurseries to grow and sell your plant and pay you for the privilege. And as with so many things in life, this money part is where we tend to fall off the rails.

As what we call the "originator" of a new cultivar, you have the legal option to apply for a plant patent to protect your "invention." If granted a patent, nobody else can propagate and/or sell your plant without your permission — and that permission usually involves that person or nursery paying you a royalty for the permission. The problem is that plant patents only last for 25 years. After that time, it's fair game and your earning potential evaporates; anyone can sell your plant and use the cultivar name for free.

Of course, there's a way to extend the earning power for your cultivar and it's called a trademark. A trademark is a legal protection for use of a particular word or set of words — think Advil® or Band-Aid®. Those terms are registered trademarks — hence the little ® after the name, registered with the U.S. Patent and Trademark office. You can charge a royalty for use of a trademark just as you can charge a royalty for someone to propagate and sell your plant. And trademarks can last forever, rather than just 25 years.

But here's the challenge ... the U.S. government says that you can't use the cultivar name of a patented plant as your trademark. Trademarks are intended to simply identify the source of the invention. So Advil is the trademark that tells you that the ibuprofen you just purchased was manufactured by the pharmaceutical company Pfizer.

The thing about the brand name is that it doesn't disappear after 25 years like the patent protection. Companies usually choose some kind of a tongue twister for the patent name. They then advertise the heck out of the trademark — usually a nice, catchy name. When patent protection runs out, few people recognize the patent name so they just keep buying the one advertised with the trademark — even though both plants are genetic clones!

Here's an example that may clear up a bit of the mud. The wildly popular Knock Out® rose has turned out to be one of the most successful new plant introductions in decades. Millions are sold every year in the U.S. But there actually isn't a plant cultivar named 'Knock Out'. Rather the cultivar is Rosa 'Radrazz', developed by Bill Radler of Wisconsin. Who's ever heard of the Radrazz rose ... nobody! Knock Out is the brand everybody knows. And when the patent protection of 'Radrazz' runs out in a few years, people will still be buying roses under the Knock Out brand even though at that point anyone can propagate and sell 'Radrazz'.

So what we have in the plant world is the same as the pharmaceutical world. Plants, just like drugs — if the originator wants to make any money off them — end up with two name references, the cultivar and the trademark.

And it is at this point that you can decide for yourself whether you now need a cocktail ... or an intervention.

Yew Dell Botanical Gardens is at 6220 Old La Grange Road, Crestwood, Ky. Information: www.yewdellgardens.org.