Trade marks assist plant breeders and horticulturalists to increase sales by differentiating their products from those of competitors. A trade mark informs customers of the commercial origins of the plant or plant reproductive material. It also conveys a message about the quality and reliability of the products.

The difference between Botanical names and Trade Marks

In the plant industry, the use of trade marks in association with plants, and particularly new varieties, is common place. A common mistake, however, is to use the trade mark as the name of the variety or cultivar of plant.

  Botanical names

Trade marks

Type of protection

The identifying name for a particular genus of plant.

A separate identifier to indicate the commercial origins of the plant as having a connection with a particular grower.

Method of protection

Registration under the Plant Breeders Rights Act 1994 or as a cultivar name with the appropriate international authority.

Registration under the Trade Marks Act 1995.

Term of protection

Limited period of exclusivity and then becomes available for all to use as the name of that variety of plant.

Indefinite protection so long as registration is renewed.

Correct use of Trade Marks for plant varieties

Proper use of a trade mark is central to the ability to obtain and maintain exclusive rights to the trade mark and to obtain remedies for infringement. If a plant name becomes the generic name for the plant cultivar it cannot be registered as a trade mark and, if registered, will be vulnerable to removal.

Most of the confusion in the plant industry about the role of trade marks arises from improper trade mark use as the name of a plant variety or cultivar. Trade marks and Plant Breeder’s Rights or cultivar names may be used in conjunction with each other, but care should be taken to carefully differentiate each name.

Five lessons for plant breeders and horticulturalists

  1. A trade mark is NOT a varietal or cultivar name of a plant.
  2. Do not use a trade mark as a varietal name.
  3. Always follow the trade mark with a noun or generic name for the plant e.g. Lambs Meadow R Sutera.
  4. Prepare labels correctly by displaying the following information:

    -  botanical name in the correct format;
    -  varietal name;
    -  PBR name (if any) with the PBR symbol;
    -  trade mark with the TM or R symbol;
    -  name of grower or nursery.

  5. Do not copy artwork, logos, designs or written descriptions from another grower's label.