A visit to a garden center has become more educational
over time. Call it shrewd merchandising or just simplifying
horticulture for the masses, but branding plants continues
to be a hot button in the Green Industry.
More and more plant tags include copyrights, trademarks
and patents; maybe that’s why bigger tags are found
on plants of all sizes these days. There are some interesting
details about those plant protections.
Plants can be patented just like can openers, clocks
and car parts. If a person discovers a plant that is
different from any others in their nursery or garden,
they can clone that plant and apply for a patent. The
rules require invention or discovery in a cultivated
state (hybridizing works, but finding a plant in the
wild doesn’t count) and you have to reproduce the plant
asexually (graft, root a cutting, divide, layer or
otherwise make genetically identical copies).
Plant patents last for 20 years and cost money, but
the inventor (the people who invented, discovered or
propagated the plant) can control production and propagation
or charge a fee when others make money off their plant
invention. Nurseries that grow a plant you patent are
required to pay you when they sell a copy of the plant
you “invented.”
Interestingly, most seeds and all tubers are exempt
from patents.
People who think their seeds and tubers are extra
special can apply for protections from the US Department
of Agriculture. Some manufacturers require farmers
to follow regulations and legal agreements before planting
the genetically modified seed of certain vegetables,
like herbicide resistant corn or soybeans.
Trademarks are different and apply
more to a name than to a plant. For example, Endless
Summer® is the trademark name of 
Hydrangea macrophylla ‘Bilmer.’
You will probably never see a sign in the garden
center pointing people to the Bilmer bigleaf hydrangeas,
but they will put the plants in a colorful pot with
a big tag displaying the trademark name and charge
a premium price. This plant is also patented, so after
the botanical name and cultivar, the tag will have
two capital letters, “PP,” and a string of numbers
in parentheses.
Similarly, there are many cultivars of Encore Azalea®,
each with a cultivar name you may never recognize.
Individual trademark names use the word autumn and
a color description to distinguish the characteristic
that these plants bloom at an unusual time for azaleas
(e.g. Autumn Amethyst™, Autumn Coral™). Trademarks
promote a brand or origin and are not technically part
of the botanical name of the plant. Actual cultivar
names cannot be trademarked since they are for public
use to identify plants.
“Unfortunately, calling a trademarked plant by
its true cultivar name makes a gardener look silly
when they go around calling disease resistant roses
by the cultivar names Radcon, Radyod and Radrazz instead
of Knock Out™” says Mark Blevins, Gaston County Extension
agent. “Try this at your next garden gathering and
see what conversations take place, people may think
you are just trying to impress them.”
Copyrights are separate and protect a form of expression.
A plant tag or image can be copyrighted so that others
cannot legally reproduce and distribute the description,
image or tag. Lots of things can be copyrighted (songs,
books, dramas and other artistic forms), but plants
cannot be protected by copyright.
So, if you and your gardening friends are thinking
of writing a play about some trademarked and patented
plants, consider a lawyer.
As if this wasn’t enough, groups of plants can be trademarked.
David Austin®, Plants that Work®, and Proven Winners®
are examples of plant collections with registered trademarks.
Consumers often associate quality or a special characteristic
with plants under a brand name since lots of research,
work and money have gone into the picking and choosing
of particular plants included in these named collections.
Expensive, colorful signs direct visitors to collections
of plant groups that offer unique landscaping opportunities.
Stepables® may be a great choice where a ground cover
is needed. 
And
if you need ideas for accessorizing with color in autumn
then Fall Magic® selections just might fit the bill.
Keep in mind, however, that plenty of plants with more
common names may be hidden behind the plants with the
“pink or blue pots” and the flashy brand names.
Just because a collection is trademarked doesn’t
mean those are the only plants with those features.
Feel free to try the plants at a local nursery or
garden center that aren’t branded. As along as they
have a track record of good performance in piedmont
gardens, they should be worth the taking.
