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National Association of Plant Patent Owners
Position on the Use of Trademarks Associated with Horticultural Plants
As defined in the Federal Trademark Act (U.S. Code, Title 15, Chapter 22, Sec. 1127), the term "trademark" includes any work, name, symbol, or device, or any combination thereof, either: (1) used by a person; or, (2) which a person has a bona fide intention to use in commerce; to distinguish goods, including a unique product, from those produced or sold by others. A trademark is intended to identify the source or origin of a product and, assuming that the product is good, generate goodwill for its producer or distributor. A trademark may be used to identify a product or product group, by the owner of the trademark or with that person's permission.
Trademarks and Cultivar Names
A cultivar name is devised and intended to be used as the descriptive name of a variety. A cultivar name may be voluntarily registered pursuant to the International Code of Nomenclature for Cultivated Plants -- 1995. If the plant is patented, the cultivar name typically appears on the U.S. Plant Patent. Conversely, properly used U.S. federal trademarks -- whether registered with the U.S Patent and Trademark Office or are unregistered -- are marks of trade origin. They should not be confused with or equated to the common-use name of a cultivated variety. Furthermore, a cultivar name cannot be validly registered as a trademark at the U.S. Patent & Trademark Office. Although various national and international laws may permit a trademark to be associated with a particular cultivar or a group of cultivars, this association is, by its legal nature, not permanent. It may be altered at the discretion of the owner of the mark, whereas generally the cultivar name should not change. The mark may be later associated with one or more different cultivars.
While some confusion exists in the horticultural community with regard to the role and proper use of trademarks, breeders and marketers of plant varieties rightfully have the same opportunities as producers of other goods to use trademarks in association with plant varieties. The keys to acceptance of trademarks associated with plants are understanding and proper use.
Proper Trademark Usage
A federal registered trademark may be identified by the symbol ® or the words "Registered in the U.S. Patent and Trademark Office" or "Reg. U.S. Pat. & Tm. Office." In the case of a trademark for which trademark rights are claimed, but has not yet been registered, it is proper to use the abbreviation "TM" next to the mark so as to inform the public of the owner's claimed proprietary right in it.
Though there is no legal obligation to do so, NAPPO suggests that the use of single quotes should be reserved exclusively for designating cultivar names, consistent with the International Code of Nomenclature for Cultivated Plants -- 1995. Trademarks should not be enclosed in single quotes, but rather should always be followed by the appropriate trade-mark symbol, either TM or ®. NAPPO further suggests that consistent use of the cultivar name (in single quotes or preceded by the abbreviation "cv.") and the trademark (with appropriate symbol) will help to avoid confusion. (Trademark users may wish to obtain competent legal advice on proper trademark use).
These guidelines are also consistent with the position of the American Association of Botanic Gardens and Arboreta. This arrangement will help to preserve the distinction between cultivars and trademarks, and will also preserve the rights of trademark owners by encouraging legal and proper use of trademarks.
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