USE AND MISUSE OF TRADE MARKS IN EUROPEAN NURSERY INDUSTRY
In this article mainly two denominations used in the marketing of plant varieties will be discussed. First, the variety denomination which must enable the variety to be identified and has to differ from already existing denominations used to identify other varieties of the same or of a closely related species. Secondly, the trade mark, which is a designation of the origin of goods (and services) and enables a person who offers for sale or markets a certain product to distinguish this product from identical or similar products, offered for sale or marketed by someone else. The variety denomination is destined to identify one particular variety forever, i.e., not only during the (possible) period of protection of that variety, but also after the expiration of that protection. In the case of a variety protected by plant breeders rights a trade mark may be associated with the designated variety denomination, but the latter must always be easily recognisable as such. No rights in the designation (e.g., trade mark rights) registered as the denomination of the variety shall hamper the free use of the denomination in connection with the variety. Problems may arise when a variety is only marketed under the trade mark, or when two or more persons use different trade marks for the designation of one and the same variety and do not use the official variety denomination as well. Problems may also arise when the trade mark is put within single quotation marks (in order to make it look like a variety denomination), or when someone sells plants belonging to different varieties under one and the same trade mark, once again without using the respective variety denominations as well. In these cases the ends of the international system of variety denominations will be frustrated and there will be a lot of confusion in horticultural trade. Moreover, there is the risk that the trade mark might become the common name, i.e., the generic designation of the variety, and as a result the trade mark right might be declared to be revoked. Further, a trade mark can also be declared invalid if, as from the outset, it consists exclusively of signs or indications which have become customary in the bona fide and established practices of the trade.
van der Kooij, P.A.C.E. (2004). USE AND MISUSE OF TRADE MARKS IN EUROPEAN NURSERY INDUSTRY. Acta Hortic. 634, 37-43
variety denominations, plant variety protection, horticulture, breeders' rights, legal aspects