Plant tags often contain more than just care instructions. Gardeners may notice abbreviations such as PP, PPAF, ™, or ® attached to plant names and wonder what they mean. Understanding plant patents and trademarks is important, especially when propagating plants for personal use, sharing divisions with friends, or contributing plants to swaps and sales.
Why Do Patents & Trademarks Exsit? | About Plant Patents | About Trademarks | Propagating & Selling Plants with Patents & Trademarks | Summary | More Information
Why Do Plant Patents & Trademarks Exist?
Developing and introducing a new ornamental plant can take many years. In fact, the process of breeding, selecting, and evaluating a new plant can take up to 20 years. Patents and trademarks help plant breeders and nurseries protect their investment and receive compensation for introducing new plants to the marketplace. Royalties collected from patented plants help fund the development of future introductions.
While patents and trademarks are often mentioned together, they protect different things.
A plant patent protects the plant itself, specifically its unique genetics and its vegetative (asexual) propagation. A trademark protects a name, logo, or brand used to market or sell a plant.
Understanding Plant Patents
The United States Plant Patent Act allows breeders, discoverers, or inventors to protect a new plant that is distinct, novel, and capable of being reproduced asexually through cuttings, grafting, tissue culture, division, or other vegetative methods. A plant patent lasts for 20 years from the filing date and cannot be renewed.
For gardeners, the practical implication is straightforward: if a plant is under patent, you cannot legally propagate it by division, cuttings, or other vegatative methods without permission from the patent holder. This restriction applies whether the propagated plant is sold, given away, donated to a plant sale, or exchanged at a plant swap.
Many gardeners are surprised to learn that sharing divisions of patented perennials at a garden club plant sale or swap is technically prohibited during the patent period. While patent protection was primarily designed to prevent unauthorized commercial production, the restrictions apply broadly to all asexual propagation.
Fortunately, patent protection is not permanent. Once the 20-year patent expires, anyone may propagate and sell that cultivar.
How to Identify a Patented Plant
Plant patents are often indicated on plant tags and labels by one of the following:
- PP followed by a number (Plant Patent)
- USPP followed by a number (U.S. Plant Patent)
- PPAF (Plant Patent Applied For)
- Patent Pending
If a plant is marked PPAF or Patent Pending, it is wise to treat it as protected and avoid propagation until its status is clear.
Searchable databases for patented plants are also available: Plant Patents Color Images Database & Google Patents.
Plant Variety Protection Certificates
Plant Variety Protection (PVP) Certificates are issued by the USDA for new plant varieties. A PVP certificate allows the owner to prevent others from reproducing, selling, marketing, importing, exporting, or distributing the protected variety without permission. Limited exemptions exist for research and plant breeding.
PVP protection lasts 20 years for most plants and 25 years for trees and vines.
Unlike a plant patent, which protects asexually propagated plants and restricts propagation by methods such as division, cuttings, and grafting, a PVP certificate primarily protects seed- and tuber-propagated varieties and provides broader control over reproduction and commercialization of the variety. Plant patents are issued by the US Patent and Trademark Office, while PVP certificates are issued by the USDA.
A searchable database for PVP certificates is available from the USDA: Plant Variety Protection Certificates.
What About Seeds?
Plant patents generally protect asexual or vegetative reproduction. In many cases, using a patented plant in sexual reproduction is not prohibited, because seedlings produced from seed are not identical clones of the patented plant. However, PVP certificates do protect seed-propagated varieties. Plant breeding rights can become complex, and other intellectual property systems, such as utility patents, are also used for certain crops. Gardeners interested in saving or distributing seed should review the specific protections associated with that plant.
Understanding Trademarks
Trademarks often create more confusion than patents. A trademark protects a marketing name or brand, not the plant itself. Examples familiar to gardeners include names such as Knock Out®, Endless Summer®, Drift®, and Encore®. These names help consumers recognize products and identify their source in the garden center.
Trademark protection can potentially continue indefinitely as long as the trademark remains in use and is properly renewed and maintained. Registered trademarks are typically identified with the ® symbol, while unregistered trademarks use the ™ symbol.
The Difference Between a Trademark Name & a Cultivar Name
One of the most confusing aspects of plant naming is that plants can have both a cultivar name and a trademarked or marketing name.
A plant may be sold under an attractive trademarked name while also possessing an official cultivar name that appears in single quotation marks. The cultivar name is the plant's true identifying name under horticultural naming conventions, while the trademark functions as a marketing label. This distinction explains why a plant tag may include both a catchy sales name and a less memorable cultivar name.
Examples of this include Phlox paniculata ‘Dophlflalipiim’ trademarked as Flame® Light Pink garden phlox, and Malus 'JFS-KW5' trademarked as Royal Raindrops® crabapple. These plants are sold and almost exclusively known by their trademarked name. Only the owner of the trademark has the ability to sell it using that name, giving that person the ability to benefit from its sales, especially after the plant patent expires.
Can You Propagate a Trademarked Plant?
This is where gardeners often get confused.
If a plant is only trademarked and not patented, the trademark does not prevent propagation. You may legally propagate the plant. However, you generally cannot market or distribute the propagated plants using the protected trademark name. Instead, you would need to refer to the plant by its cultivar name. So when you give your friend a division of a certain popular cranesbill, it would be labeled as "Geraium 'Gerwat'," not "Rozanne® geranium."
In practice, many newer ornamental plants are both patented and trademarked. In those cases, the patent restriction is usually the more important consideration because it prohibits propagation during the patent period.
What This Means for Plant Sales & Swaps
Before contributing plants to a Master Gardener sale, community plant exchange, or garden club fundraiser, it is worth asking a few questions:
- Is the plant patented?
- Does the tag indicate PP, USPP, PPAF, or Patent Pending?
- Has the 20-year patent period expired?
- Is the plant being propagated from divisions or cuttings?
If the plant is still protected by a patent, it should not be propagated for distribution, whether for sale or as a giveaway. If it is only trademarked, propagation may be allowed, but the trademark name should not be used in ways that violate trademark rights.
In Summary
Plant patents and trademarks encourage innovation by allowing breeders and nurseries to recover the costs of developing new plants. For gardeners, the key rule is simple: a patented plant should not be propagated by division, cuttings, or other asexual means without permission during the patent term. Trademarks, on the other hand, protect names and brands rather than plant genetics.
When in doubt, keep the plant tag, look for patent information, and do a little research before propagating a cultivar for a plant sale or swap. A few minutes of checking can help ensure that gardeners are respecting the rights of plant breeders while continuing to enjoy and share their love of plants responsibly.
More Information
- All About Scientific Names
- The Meaning Behind Latin Names
- What is the difference between a cultivar and a variety?
Photo credits: 1: Aaron Steil