the national nurseryman 
129 
Quiz Column. 
LEGAL STATUS OF TRADE-MARK ON VARIETAL 
NAMES. 
Sarcoxie, Mo., August 3, 1904. 
The National Nurseryman Publishing Co., Rochester, N. Y. 
Gentlemen: —We are in receipt of your “Announcement” 
of July 21, 1904, and wish to submit the following question 
for answer in the National Nurseryman: 
What is the legal status of a trade-mark ou varietal names 
of fruit trees or plants? 
Yours truly, 
James B. Wild & Bros. 
This question was submitted to Judge Frank Irvine of the 
College of Law of Cornell University, to the Hon. John 
Cunneen, Attorney General of the State of New York, and to 
Pomologist W. A. Taylor, Division of Pomology, Washing¬ 
ton, D. C. W r e are very grateful for their valuable opinions 
which are given below. [Ed.] 
OPINION OK JUDGE IRVINE, COLLEGE OF LAW CORNELL UNIVERSITY, 
ITHACA, N. Y. 
It is clear that a name, as applied to a product, natural or otherwise, 
is not the subject of copyright. Copyright is designed to protect literary 
and artistic property and extends only to books, maps, pictures, 
statues and similar productions, protecting the author against an 
unauthorized reproduction thereof. A mere label cannot be copy¬ 
righted, (Higgins v. Keuffel, 140 U. S. 28). 
The name applied by one who has discovered or developed a new 
variety of fruit, to that fruit or the stock producing it, is more in 
the nature of a trade-mark or trade-name. It has been held however, 
that a natural product which reproduces itself, is not the subject of 
trade-mark (Hoyt v. Lovett, 71 Fed. 173). That was a case where 
the plaintiff had bought grape-vines from one who had found the 
parent stock on the Green Mountains and had accordingly called it 
the “Green Mountain Grape” and the defendants were raising and 
selling products from the same parent stock. The case is certainly 
authority for the proposition, which seems perfectly sound, that one 
who develops a new variety of fruit and who has attached to it a par¬ 
ticular name, cannot appropriate to his exclusive use such name, as 
against those purchasing stock from him, in the absence, at least, 
of a special contract with the purchaser. In other words, the sale 
of the fruit or of nursery stock, in the absence of contract, carries 
with it the right to reproduce and sell the product under the original 
name. 
It does not follow that the name is entitled to no protection. Should 
a stranger offer for sale other fruit or stock, not derived from the parent 
stock, under the name so given and under circumstances calculated 
to lead the public to believe that his products were so derived, an 
element of unfair competition would appear, against which the courts 
would afford relief to anyone having the right to use the name. 
The selection of such a name requires care; it should not be merely 
descriptive of the article, because in such a case, any person has the 
right to use the same name, when it is properly descriptive of his own 
product; it should not be the name of a locality, because any pro¬ 
ducer in that locality has an equal right to the use of the name. If 
the name of the producer himself is taken, a person of the same name 
is not thereby prevented from using it in good faith. The name chosen 
should be fanciful and novel, as applied to that use. No formalities are 
required; the appropriation of the name and its actual use in commerce 
create such rights as can be in any way acquired. Trade-marks may, 
however, be registered in the Patent Office for use in foreign commerce 
and commerce with the Indian tribes, but such registration confers 
no right in ordinary domestic commerce. 
OPINION OF HON. JOHN CUNNEEN. ATTORNEY-GENERAL 
OF NEW YORK. 
Under the authority of the case of the Congress and Empire 
Spring Co. vs. High Rock Congress Spring Co., 10 Abb. Pr. N. S. 
348, it would seem that a trade-mark reserves to its owner the 
sole right to label or describe a particular product by such trademark, 
whether the product be of a natural or an artificial origin, but in a case 
of a natural product only where the owner of the trade-mark is possessed 
of the exclusive source or origin of such product. 
Therefore, it would seem doubtful if the possession of a trade-mark 
on the varietal names of Iruit trees or plants would be effective against 
other producers of the same varieties of trees or plants. The wrongful 
use of a trade-mark is made punishable by section 364 of the penal 
code as a misdemeanor, and the designation or description by any 
person or corporation of a different or inferior product as the product 
to which the trade-mark applies for the purpose ot deceiving the public 
may be restrained by injunction. 
Bininger vs. Wattles, 28 How. Pr., 206. 
• A POMOLOGISTS VIEW. 
WM. A. TAYLOR POMOLOGIST IN CHARGE OF FIELD INVESTIGATIONS, 
WASHINGTON, D. C. 
First, there is no such thing as a “copyrighted name” in the United 
States. Names are not subject to copyright. Only printed matter 
involving something more than a mere name, pictures, maps, etc., 
are subject to copyright. An introducer of fruits or other plants can 
therefore, receive no protection from the copyright law, except so far 
as illustrations of his variety or descriptions of it are concerned. 
With regard to the legal status of trade- marks on varietal names of 
plants, I do not know that the matter has ever been tested through 
to the highest courts. The “Green Mountain” grape case resulted 
in a decision against the trade-mark on “Green Mountain” as a varietal 
name, both because it was a geographical name, which could not be 
appropriated as a trade-mark, and for the following reasons, to quote 
from the decision in that case: 
“There is no doubt that the sale of seeds, plants, or vines, when de¬ 
tached from the soil in which they grow, carries with it on delivery 
the right of natural increase or products of the same, when sown or 
replanted. Neither the common law nor the statutes relating to trade¬ 
marks extend the protection of trade names to things which are valued 
more for their natural powers of reproduction and increase than for 
any other qualities. The facts in the present case afford an apt illus¬ 
tration of the incongruity of a contrary doctrine. A man bu 5 r s a grape 
vine, to which is attached a metallic label stamped with the trade¬ 
mark of the seller. In the absence of a special contract between the 
parties, what is to prevent the buyer from cultivating the vine, and 
selling its products, whether of wood or of fruits, under the name of 
the parent stock? Certainly not a trade-mark. To repeat the words 
of Mr. Justice Strong, ‘No one can obtain protection for the exclusive 
use of a trade-mark or trade-name which would practically give him 
a monopoly in the sale of goods other than those produced or made 
immediately by himself.’ ” 
The registration of a plant name as a trade-mark does not in any 
way prevent anyone from propagating and selling plants of the same 
variety under other names than that trade-mark. 
In consideration of the above, it appears to me that there is little 
protection for originators or introducers in our present trade-mark 
laws. They were not originally intended to apply to plants, and their 
attempted application to plants appears thus tar to have been un¬ 
satisfactory to all persons concerned. 
COLONIST RATES. 
VIA WABASH RAILROAD. 
From September 15th to October 15th the W abash Railroad will 
sell colonist tickets to California Coast Points, Los Angeles, San Diego, 
San Francisco also to North Pacific Coast Points, Portland, Seattle, 
Tacoma, at rate of $42.50. Correspondingly low rates to intermediate 
points See your nearest Ticket Agent, or address: 
James Cass, R- F. Kelley, 
N. Y. S. P. A. * G. A. P. D. 
287 Main Street, Buffalo, N. Y. 
Storrs & Harrison of Painesville, Ohio, write that though the season 
has been cold and backward yet the growth of apple stock is 
verv satisfactory. Plum and peach have made rather a small 
growth, while pear stock has done well. 
