WHY TRADEMARK PROTECTION IN THE HORTICULTURAL SECTOR
As a grower or breeder, your product is your most valuable asset. To stay ahead of your competitors, you need to protect this asset to the best of your ability. Plant breeder’s rights protect cultivars as a product and give the cultivar it’s variety denomination. However, nowadays it is equally important to protect the variety tradename of your cultivar or product series. You can do this by having the variety tradename registered as a trademark.
Trademarks are used to distinguish the products or services from a specific grower or breeder from those of a competing grower or breeder. Trademarks come in all shapes and sizes. From a trade designation or company name, to a logo, drawing, stamp, print, shape, colour or slogan.
By having your mark registered in the trademark register, you obtain a trademark right. This right entitles you, and you alone, to the exclusive use of this trademark in connection to the goods or services covered by the registration. It enables you to take action in case of infringement by unauthorized use of your trademark by another company. The mere use of a trade designation does not create a trademark right! To obtain a trademark right, your trade designation must be registered.
A trademark registration entitles you to the exclusive use of a particular mark. This is an effective weapon in the fight against infringement. Once your trademark is registered, you can stop others from using or registering your mark or a confusingly similar mark. In other words, registration is crucial to secure the investments you make in your mark.
The goodwill of a highly marketable cultivar is linked to the name under which it is sold. By selecting your own trademark rather than using the generic variety name to put a cultivar on the market, the goodwill connected to your trademark can be extended to any improvements made to the variety. This goodwill can also be used to introduce a new cultivar on the market under the same trademark. Provided the trademark is registered, of course.
Another advantage of trademark rights is that they are perpetual. Plant breeder’s rights are valid for only 25 or 30 years. However, once this plant breeder’s right lapses, a breeder can hold on to the accumulated goodwill, provided he has been using a registered trademark. What’s more, a grower without plant breeder’s rights, can even create his own market based on a strong mark.
Last but not least, the same trademark can be used for a whole range of varieties, species and end products. The varieties do not even need to be taxonomically related for the goodwill connected to the trademark to be used to increase the sales of another species from the same breeder or grower.
It is useful to register your mark in those countries where you (intend to) use the mark. It is not possible to register a mark worldwide by means of a single registration. You will need to register your mark in each country or region separately. There are a number of international treaties that enable registration in several countries at once:
National registration – you register your mark in each country in which you have an interest, individually.
International registration – a system that allows you to include over eighty countries in a single registration.
European registration – a single registration protects your mark in all countries of the European Union.
It is crucial that you register on time. The adagio ‘First come, first serve’ certainly applies here. What is the best and most cost-efficient manner for you depends on your ambitions and budget.
Do you have any questions about trademark protection in the horticultural sector?