What is the difference between a trademark and a patent?
“Patents protect inventions...Trademarks include any word, name, symbol, or device...used in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others and to indicate the source of the goods”. Only a patent has the ability to control (permit or exclude) propagation of a plant variety. A trademark does not provide this protection."
What does this mean to us gardeners?
If there is NO "patent", "patent pending", "®", or "TM"
gardeners are in the clear to propagate that plant and share in any way we wish.
Example: KARENSVEGGIE can be grown and seed saved.
If there is an "®" or "TM"
behind the name, the NAME is protected, but not the seed/plant. Gardeners can propagate by cuttings or seeds and share WITHOUT using the trademark name.
Example: KARENSVEGGIE® plants or seeds cannot be propagated and called KARENSVEGGIE. They can be called JOHNSVEGGIE or anything else.
If there is a "patent"
on the PLANT/SEED, gardeners cannot reproduce that plant until the patent expires in 20 years.
Example: Patented KARENSVEGGIE cannot be propagated including by seeds or cuttings without violating the law.
Reference:
United States Patent and Trademark Office
General Information About 35 U.S.C. 161 Plant Patents
https://www.uspto.gov/patents-
