Because the federal government allows individuals and companies to acquire trademarks on plant names and actual patents on certain plants, many gardeners ask whether it's legal to propagate those plants. Master gardener Paul James clarifies the issue:
The United States Patent and Trademark Office issues two symbols:
- An "R" within a circle means that a particular plant name has been officially registered and trademarked.
- A small "TM" by the plant name means that the trademarked name has been claimed but not officially registered. Trademarks remain in effect for 10 years, but they can be renewed indefinitely in 10-year increments.
If you see a plant whose name includes either of those symbols, you can propagate it asexually by taking cuttings. You can even sell the propagated plants for profit, but you can't call those plants by the trademarked name or acquire your own trademark for those same plants. You can, however, use the plant's cultivar name if it has one (shown in single quotes)--assuming that it isn't also patented.
Patented plants are a different subject altogether. A plant's patent is good for 17 or 20 years, and it is not renewable. But during that time, it gives the holder exclusive control over that plant.
Plants that have been patented will have either a patent number on the label or some indicator that a patent has been applied for. Patented plants may not be propagated in any way, shape or form without the owner's permission or until the patent term has expired. There aren't any plant patent police out there, but nurserymen and various trade organizations are always on the lookout for those seeking to infringe on a patent.
