1 36 
THE NATIONAL NURSERYMAN. 
AS TO TRADE HARKS. 
Proposed Copyright Law for the Protection of Introducers of 
Varieties of Trees or Plants—The Late Judge Coe’s Sug¬ 
gestion Endorsed by Assistant Pomologist W. H. 
Taylor—As to Varieties Already Produced. 
1 he present copyright law, contrary to the opinion of some, 
gives no authority for copyrighting a variety or the mere name 
of a variety. The introducer is protected in the use of the 
particular illustrations and descriptive matter which he may 
copyright and publish concerning a variety ; but the propaga¬ 
tion or sale of a variety cannot be restricted or the use of its 
name by the general public be prevented. 
In a discussion of this subject in the Rural New Yorker 
Assistant Pomologist W. A. Taylor says : 
Since the enactment in 1881 .of the law which authorized 
the registration and protection of trade marks, a number of 
nurserymen have sought protection as it afforded. This they 
have secured by registering, as a trade mark, the varietal name 
or some picture or device, of which the name is usually a com¬ 
ponent part, either printed in plain letters or stated in the form 
of a rebus, as was done for the Wonderful peach. Considered 
from a purely technical standpoint, ther^ is, apparently, no 
doubt that a trade mark properly registered is as applicable to 
a plant variety as to any other commodity offered for sale. If 
the trade mark consists simply of the varietal name, the owner 
of it, undoubtedly, has as good a right under the statute to 
the sole use of that name when applied to trees, cuttings, 
scions, etc., of that particular variety in commerce, as any 
manufacturer has to his trade mark name. But so far as re¬ 
stricting the purchaser from propagating the variety is con¬ 
cerned, the trade mark is absolutely ineffective. There seems 
to be nothing to prevent him from propagating the variety at 
pleasure for his own use, or for sale, under any other name 
than that registered, unless he expressly gives up this right by 
signing an agreement to that effect. 
“ This is the weak point of the present trade mark law so far 
as the originator and the introducer are concerned. Various 
plans for the strengthening of the law have been suggested, at 
different times. One of the simplest and, apparently, most 
practical of these was that proposed by the late A. J. Coe, of 
Meriden, Conn. It was embodied in the following bill intro¬ 
duced in the Senate December 30, 1895, by Senator Platt, of 
Connecticut, and referred to the committee of patents. 
A bill amending chapter two of the revised statutes relating to 
trade marks. 
Be it enacted by the Senate and House of Representatives of the United 
States, of America in Congress assembled: That any person who, by 
planting or causing to be planted seeds of any tree or plant, or by 
other means, has originated or produced or shall hereafter originate or 
produce any new variety, shall himself or his heirs or assigns, or any 
purchaser or purchasers of the exclusive title, have the right to name 
such variety and to register such name in the manner provided for the 
legislation of trade marks. And the provisions of all statutes for the 
protection of trade marks shall be extended to include the protection 
of such name so registered. And it shall be unlawful for any person 
to sell 01 disseminate said variety under another name, representing it 
to be the variety so named and registered. 
To be entitled to registry, such name shall consist of the generic 
name and a distinguishing word prefixed. 
The provisions of this act shall, in case of varieties already produced, 
apply only to such varieties or products as shall be at the time it takes 
effect still exclusively in the hands of such originators or their repre 
sentatives or of purchasers of the exclusive right thereto. 
“In an interview with the writer, Judge Coe, not long before 
his death, expressed the belief that the provisions of this bill 
were sufficiently comprehensive, if enacted into law, to afford 
sufficient legal protection to plant originators and. introducers, 
and that its enactment would enable them to secure a fair 
proportion of the profits resulting from their labors. While 
petty theft and evasion would, no doubt, continue, he believed 
that, under such a law, plant originators would have a legal 
standing in court which would enable them to defend their 
property rights in new varieties, and to prevent open and 
flagrant usurpation of them by responsible persons and firms.” 
JACOB MOORE ON TRADE-MARKS. 
One of the most persistent advocates of trade-marks for 
plants and trees to protect the originator is Jacob Moore, Vine 
Valley, N. Y. In a communication to Green’s Fruit Grower he 
says : “ It has often been asserted that patents should be given 
for new varieties of fruits as well as mechanical devices. Analysis, 
however, shows that in its entirety the law will not fit the case. 
The words of the patent to manufacture and use are indefi¬ 
nite terms as applied to plants. Using a fruit-tree or straw¬ 
berry plant for instance would be growing it and that would 
be manufacture ; that is to say mgre branches, buds and fruit 
would be produced by the fruit tree, and more plants by the 
strawberry. 1 hen what would be the use of an ornamental 
plant? Adornment, of course. Using a machine is operating 
it, which does not result in making the machine itself. Hence 
it is clear that other terms must be employed in the statutory 
piotection of products of the soil. Besides there are other 
obstacles in the primitive provisions of the law of patents that 
need not be pointed out. Making the name of new fruit a 
trade-mark also, in order to protect the sale of the plants will 
not work. The trade-mark would not permit increase of the 
number of plants by growers, nor would it permit the use of 
the name to sell the marketable product. That I think would 
be a natural right if the grower had bought the right to grow 
the plant of the lawful introducer. Then how could a trade- 
matk of the name be applied to such a thing as a cereal or 
potato where there is no plant for sale apart from the product? 
It would cut off the market. 
In dealing with this subject the plant’s connection with 
the soil is an entirely new factor to be considered with which 
the patent, trade-mark and copyright laws have nothing to do. 
x erennial fruit bearing plants are set out to remain and become 
a part of the real estate on which they are situated. Given to 
the originator of a new variety the exclusive right to grow the 
plant which he should have in order to prevent others from 
appropriating the benefit of the variety—pecuniary or other¬ 
wise—without compensating him, he would necessarily have to 
specify the piece ot land on which it was to be grown and con¬ 
vey said right to the owner thereof in writing in order to trace 
his variety. He would have territorial rights to sell therefore 
the same as the owner of an ordinary patent. The inability of 
false labellers to grant the conveyance mentioned would pre¬ 
vent them from labelling plants of common varieties with the 
names of protected new ones. Consequently the protection of 
the originators would be the protection of planters against 
frauds.” 
