Branded!
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How a Common Marketing Strategy is Changing the Way the Green Industry Does Business PART 2: TRADEMARKS By Amy Fulcher, Extension Specialist and Professor, Lauren Fessler, Extension Assistant, and Tammy Stackhouse, former Extension Program Assistant
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cross the last 10 years, branding programs, which often include the use of trademarks and plant patents, have come to predominate new plant introductions in the U.S. Green Industry. To continue to propagate and grow the latest plant selections, an understanding of these branding tools, how they are used, and the protections afforded to plant breeders and other plant developers is necessary. In part 1 of this series, we provided an introduction to branding and its benefits and plant patents. In part 2, we’ll cover trademarks, including the delicate balance of being widely recognized by the brand name without becoming generically known by it. We’ll also cover a few case studies to help producers, landscapers and other members of the Green industry navigate this form of intellectual property.
Trademarks Trademarks are defined as, “any word, name, symbol, or device which a person has the intention to use in commerce and who applies to register the trademark to identify and distinguish his or her goods.” Despite common misconception, trademarks identify the source of a product rather than the specific product itself. Trademarks last ten years but can be renewed indefinitely, and that is the reason they have become widely used by the Green Industry. Two main symbols are used to indicate trademark status. The ® symbol means “Registered” and signifies that the trademark is registered with the US Patent and Trademark Office and the rights are owned exclusively. The ™ symbol indicates that a word or graphic is being claimed by a company or individual to signify the source of their goods, but it has not been federally registered or that registration is still pending. An unregistered trademark gives very limited rights to the company or individual. Companies or individuals can still sue for common-law infringement within the region that the goods are produced and sold, but they must be able to prove they were the first to use the trademark and that the infringing party’s use of the trademark confuses the public from distinguishing the goods’ source.
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tennessee greentimes SPRING 2022
Several rules apply to what can and cannot be trademarked. Varieties and cultivars are treated identically for trademark purposes and cannot be trademarked. In other words, cultivar names are considered generic. For example, if a new cultivar of hydrangea is created and the name is Hydrangea ‘Joey’s Joy’ then the name Joey’s Joy cannot be trademarked. Additionally, once a name is established and used by the general public it cannot be trademarked. Moreover, once a trademarked name becomes generally used as the common or generic name for a product, the company risks losing their trademark. For example, thermos, dry ice, and kerosene were once trademarked but are now recognized as generic names. The trademarked name must be unique and never been used as a cultivar name or in connection with a plant patent, utility patent, or certificate for plant variety protection. Descriptive names cannot be trademarked. The best trademarks are names completely unrelated to the item, for example Cheerios™ and Clorox®. Remember that a trademark should help inform customers where a plant is from, not what the plant is.
® or TM, Does it Matter? ® = Registered trademark Can only be used for a trademark that has been registered with the USPTO. Using a registered trademark without permission is a federal offense and could result in litigation TM = Unregistered trademark For use with trademarks that an individual or company does not intend to register and trademarks for which registration is pending. Affords only slim common law rights within a region.
