How to Copyright a Plant's Genetic Strain Name

by Shelly Morgan
While poems about roses are entitled to copyright protection, the plants themselves are not.

While poems about roses are entitled to copyright protection, the plants themselves are not.

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Getting a copyright for your plant's genetic strain name might not afford you any protection. If you want a copyright that you can enforce throughout the U.S., you want your copyright to comply with federal law. Title 17 of U.S. Code states that copyrights protect original literary, dramatic, artistic and musical works. These categories include motion pictures, architectural works, choreographic works and pantomimes. Since plant names don't fit into any of these categories, you need to consider another form of protection.

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Nomenclature

The name of a particular genetic strain of a plant is called a cultivar. The names of cultivars should comply with the Rules and Recommendations of the International Code of Nomenclature for Cultivated Plants. These rules require that the name include both the Latin name, as well as the cultivar epithet set off with single quotation marks. For example, Eriobotrya japonica 'Golden Ziad' and E. japonica 'Maamora Golden Yellow' are two names of popular cultivars. These names cannot be copyrighted because they are not works that fall under the listed categories in Title 17.

Patent

Just because you can't copyright the name doesn't mean you are out of luck. If you have developed a new cultivar, you may be able to patent that plant. U.S. patent law permits the patenting of plants if you have invented or discovered a new plant in a cultivated area and asexually reproduced that plant. Such asexual reproduction cannot be done using parts of a tuber. If you meet these and other requirements, the U.S. Patent and Trademark Office can issue the patent. Then, you have the exclusive right to exclude others from making or using your plant. When drafting the application, you must specify the cultivar name.

Trademark Limitations

You can obtain limited protection by including your plant name in a trademark and registering that trademark with the U.S. Patent and Trademark Office. A trademark can be a word, phrase, symbol or design that distinguishes the source of goods. Because a trademark cannot be purely descriptive, you must combine the name with artwork or other language. For example, the word "milk" is purely descriptive and is not entitled to trademark protection. However, "Got Milk?" is a registered trademark. This approach does not afford complete protection because the name of the plant is not necessarily the protected part of the trademark.

Controversy

The lack of protection for plant names and the confusion that results has created controversy in the horticulture community. The rose industry often uses catchy names that don't conform to the Rules and Recommendations of the International Code of Nomenclature for Cultivated Plants. The name used in marketing the plant, which is not the real cultivar name, often becomes confused in the public's mind with the real name. The catchy names used to market these plants are often trademarked. These trademarks are allowed because they are not the true name of the plant.