Destination: London Heathrow

Magazines for the return trip, of course. This time I found an ad in Marie-Claire UK that provided me with not just blog fodder, but trademark geek blog fodder:

What does this ad tell me about British trademark law? See the (R) after Pink Lady? Pink Lady is a cultivar* name – a cultivated variety of a plant. Under US law, cultivar names do not function as trademarks, and are therefore unregistrable. When a PTO examiner is faced with an application for a trademark for goods that include “live plants, agricultural seeds, fresh fruits, or fresh vegetables,” he or she must inquire of the applicant whether the term has ever been used as a varietal name, and whether such name has been used in connection with a plant patent, a utility patent, or a certificate for plant variety protection. [citation omitted] The examining attorney must also undertake an independent investigation of any evidence that would support a refusal to register, using sources of evidence that are appropriate for the particular goods specified in the application.” [emphasis added]

Why do I add emphasis? Because the PTO doesn’t always do its appointed duty, and registrations for cultivar names like ASPARATION and BROCCOLINI have slipped through.  I’ve actually investigated the PTO records on these registrations; there’s nothing in the respective file histories to indicate whether indeed the examiner made the necessary inquiry about plant protection. I think their registrations predate this comprehensive (and new, I think) language, and thus those registrations are probably bogus. But they’re there, registered, and, in my view, obstructing the rights of growers of that cultivar to call it what it is.

I’ve had clients in the past who have tried, unsuccessfully, to register cultivar names. As far as I’m concerned, cultivar names are the equivalent of generic drug names. You need to have a name to call the “drug that does x, y, and z” once its patent has expired so others may lawfully manufacture the drug; similarly, if others may lawfully grow the apple cultivar that’s been named Pink Lady, they shouldn’t be restricted from calling it Pink Lady.

And that’s what trademark geeks do when they read foreign magazines!

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*Bonus: Merriam-Webster online advises that cultivar rhymes with abbatoir, which opens up a world of possibilities.