Plant Patents and Trademarks for Gardeners and Garden Clubs

Brunnera macrophylla ‘Alexander’s Great’

A few weeks ago, I was presenting my plant propagation workshop to a garden club. I dug up plants, cut branches, and brought in leaf cuttings to demonstrate making more from one. This was a hands-on, messy demonstration but everyone was able to bring a cutting or a division home with them.

While I was digging up my Brunnera macrophylla ‘Alexander’s Great’, I had a fleeting thought that I was not supposed to bring divisions to the workshop. It occurred to me that there could be a patent associated with this spring bloomer. Although I keep records of my plants, usually I do not keep tags or write down which plants have patents and trademarks. But I looked up ‘Alexander’s Great’ on the Internet and sure enough there is a patent: PP #25,789.

Brunnera macrophylla ‘Alexander’s Great’ was discovered in a private garden in Minsk, Belarus. It was unique in that the plant was larger, the leaves were larger, and the foliage had silver veins as compared with other Brunnera plants on the market at the time. Alexander Zuikevich, the owner, was able to propagate the plant asexually (by cuttings or divisions) so each generation was genetically the same. A plant patent was filed on November 26, 2013; the patent was issued on August 4, 2015; and it will expire on March 8, 2034.

Inventors, breeders, or ordinary gardeners can obtain a patent for inventing or discovering a plant that is new, distinct from other known varieties, and can be reproduced asexually (i.e., a clone can be made). The U.S. Patent and Trademark Office (USPTO) issues plant patents, which last for 20 years and cannot be renewed. This allows breeders time to be able to recoup whatever expenses they incurred when developing the new cultivar and to prevent competitors from propagating and selling the plant. If a plant has a patent, people cannot propagate and sell or give away that plant, until 20 years later when the patent expires.

The backside (left) of this Monrovia plant tag says: Asexual reproduction of plants protected by the Plant Patent Act is prohibited. On the front (right), Lil’ Bang is trademarked and Coreopsis ‘Red Elf’ has a Plant Patent Applied For (PPAF).

This means that gardeners and garden clubs must not dig up, divide, and give away their plants either free at a plant swap or for a fee at a plant sale if the plant has a patent. If someone does propagate a patented plant, the patent holder can sue the person in federal court. That is not to say there are “plant police” inspecting every garden club plant swap. The intent is not to punish gardeners but to deter commercial competition.

If you purchased the plant at a nursery, it was because the grower paid the patent holder a royalty for growing and/or selling the plant. There should be a tag indicating that it has a patent (or not), which always begins with the letters “PP,” followed by up to 5 numbers. If you don’t have the tag but you know the patent number, you can either look for more information via an Internet search engine or look it up on the USPTO website. If you don’t have the tag or a number, you can still search to see if it has a patent. Also, terms on the tag vary: often you will see “PPAF” (Plant Patent Applied For) or “patent pending.” When you see these terms, consider the plant patented and don’t propagate it.

Trademarks can be any word, phrase, symbol, design or a combination of these things to identify a plant. The symbol for a trademark is the “tm” superscript but it has no legal standing. A registered trademark is one that has been registered with the USPTO and has a superscript “R” in a circle. A registered trademark confers a legally recognized monopoly on the name or symbol for that plant. Registered trademarks are valid for 10 years and can be renewed.

A trademark name, registered or not, is different than the plant’s botanical name. The plant’s botanical name cannot be trademarked and thus cannot be registered with the USPTO.

Proven Winners’ Leafjoy (houseplant) tag: Use of all Proven Winners trademarks is prohibited.

Trademarks are ownership of a name while patents are ownership of the plant’s genetics. Only the trademark holder or a licensee can sell a trademarked plant under the trademark name, but anyone can use the botanical name. Growers cannot grow and sell plants under the registered trademark name unless they pay the trademark holder for a license to do so or if the growers purchase the plant starts from the trademark holder.

If a gardener has a plant with a trademarked name and no patent, the gardener cannot propagate and give away or sell divisions using the plant’s trademark name.

For example, Rhus typhina ‘Bailtiger’ is the plant’s botanical name. The common name is cutleaf staghorn sumac. The registered trademark is Tiger Eyes®. Usually the registered trademark name is catchy and appealing because it is used to market or sell the plant. This particular plant happens to have a patent, PP #16,185.

Also, a series of plants can be trademarked. For example, Anemone Fantasy™ Belle (botanical name is Anemone ‘Belle’ PPAF); Anemona Fantasy™ Cinderella (botanical name is Anemone ‘Cinderella’ PP #25367); and Anemone Jasmine (botanical name is Anemone ‘Ifanfj’ PP #31777). Note the unusual ‘Ifanfj’ name and the easy to remember marketing name of Jasmine.

Salvia Silver Scent

Trademarked plants may or may not be patented. Conversely, patented plants may or may not have a trademark.

Earlier in the year, Darwin Perennials sent me a salvia that is being marketed as Salvia Silver Scent. This is not a trademark. The plant’s botanical name is Salvia officinalis ‘Balsalslent’ and the patent number is PP #35,859. This was bred on purpose by Ball Horticultural Company to have numerous inflorescences while maintaining the culinary appeal of Salvia officinalis (the salvia with good culinary flavor).  In other words, they want to sell a common culinary salvia (Salvia officinalis) as a beautiful blooming perennial plant so gardeners get “two for one.” Salvia Silver Scent was granted the patent because it is considered to be a new and distinct form of salvia with medium violet-blue colored flowers, medium gray green foliage, and a moderately vigorous, compact mound shape. (And just so you know it has performed very well in my Zone 7 garden this year.)

The next time I give my plant propagation workshop, I will bring in my Salvia officinalis which I can propagate but not Salvia Silver Scent. And Alexander’s Great will stay where he is in the garden, blooming every spring.