Is the plant patented ?

I don't know if this is accurate, but someone over on GW posted back in October that the name "Black Diamond" is trademarked (by J. Berry Nursery), but that the USDA has not issued a patent. Possibly because of similarities to another crepe myrtle series called "Delta Jazz." And the Black Diamond website does not mention a patent number.

I have been searching and can't find anything on a patent, but as woofie said the name is trade marked. If the patent has been applied for it would still be protected unless the USDA rejected it but, I can find no mention of either situation.

We do have cultivar names in the DB of a few in the Black Diamond™ series but they don't yield patent results either. Crepe Myrtle (Lagerstroemia 'Ebony Flame'), Crepe Myrtle (Lagerstroemia 'Ebony Fire').

I find it interesting that the poster over on GW, who mentioned that J. Berry Nursery owns the trademark, has the user name of Jberry33. And also said that "the USDA elected not to patent these plants." Hmmm.

Sure does, nice tidbit woofie. It's nice to hear that the patent process is fairly critical too.

Woofie, in response to a question by Dave on the Black Diamond series, I looked around a lot for info. I found this for Black Diamond.... http://www.blackdiamondblooms.... and the info below from The grumpy gardener at Southern Living Magazine.
I also found this to be very interesting: http://www.ars.usda.gov/SP2Use...

It seems that Ebony Flame Crape Myrtle was developed at Univ of Mississippi. No one seems to know quite when the name Black Diamond came into play in conjunction with this plant, but there are instances of this plant being sold with 2 tags ....Ebony Flame and an added tag from Berry Nursery with the trademarked Black Diamond name. The USDA release noted above explains why jberry33 was not granted a patent.



F. Stanley

Stores here in Kansas City are selling Black DIamond crepemyrtles, is this a good specimen for this area? There is very little information with this shrub.
May 1, 2013 at 10:07 am

Steve Bender

My information is that ‘Black Diamond’ is an illegal release by someone who didn’t own the patent. That’s why you can’t find any info about it. I can’t say whether it’ll be hardy in Kansas City, because apparently nobody knows.
http://thedailysouth.southernl...

That's very interesting, Moonhowl. And the instances of plants having two tags is definitely telling! Sheesh, you'd think if someone were busily bootlegging plants, they'd at least have the sense to get rid of the original tag!

Moonhowl said: The USDA release noted above explains why jberry33 was not granted a patent.

This is very interesting. Thank you for sharing this. In the release above, though, I see no notations as to why jberry33 wasn't granted a patent. Scanning through the document, I see no mention of him or his "Black Diamond" "releases".

I sent an email to the contact from that PDF and asked them for more info. I'll post here if I get a reply.

I'm sorry, I should have been clearer on that statement. It is my understanding that Propagation Rights are protected for a certain period of time on a plant. In order to claim that right, the plant in question must have a complete lineage including all hybrids and cultivars along with all species info. All of that is listed in the above releases

I see no way that jberry33 could provide that info and it be accepted by USDA given that University of Mississippi had already established the parentage of Ebony Flame. It appears that U of Ms held the asexual propagation rights on the burgundy leaved Lagerstroemia indica( Ebony series) in bloom colors listed in the above release and this now allows growers and nurserymen to propagate these plants and if I understand correctly, to use these particular plants to cross and hybridize others.
Berry Nursery could not patent something he had merely changed the name of, which I am pretty sure was the reason for the trade-marked name Black Diamond. It seems to lend authenticity to those plants being his "work"

This link gives info on patents for plants

http://www.patentlens.net/dais...

Oh good. I am sure Mr. Pounders will be much more adept at explaining that than I was.

The one point I'm not clear on: Is the Ebony Flame the same as the jberry33 cultivar?

I got an answer. The exchange is below:

dave said:Dr. Pounders,

I'm the operator of All Things Plants, which is a social
gathering place for gardeners and includes an active database
of plants where people post pictures of their plants and
discuss their favorite things to grow.

For much of this year, there has been a lot of discussion
surrounding a new series of Crepe Myrtles, "Black Diamond". At
this point, the consensus is that this new series of plants are
actually a mere relabel of the Ebony series that the USDA-ARS
and MSU co-released.

Do you have any way of confirming if this is the case, and if
yes, is this an acceptable practice? The public is very
confused on this point and I'd like to share with the members
of my site the real story, from the horses mouth, so to speak.

Thank you for any information you can provide, and for your
excellent work you do at USDA-ARS, that benefits all gardeners.

best, dave

Response:

Cecil Pounders said:Hello Dave,

Yes, Ebony Crapemyrtles and Black Diamond Crapemyrtles are the same clones under different names. Black Diamond Pure White is 'Ebony & Ivory'. BD Best Red is 'Ebony Flame'. BD Blush is 'Ebony Glow'. BD Crimson Red is 'Ebony Fire'. BD Red Hot is 'Ebony Embers'. The Ebony names are the officially register cultivar names and anyone is allowed to propagate and sell plants under the Ebony names without paying any fees. The practice of selling public domain plants under a trademark is legal and is not a new practice. You can usually identify the practice if you see a trade mark plant tag with no ppaf or patent number listed.

Cecil

I have updated our database to change all Black Diamond cultivars over to their correct name per Dr. Pounders:

http://garden.org/plants/searc...

And the final answer to the question here is: No, these are not patented and you can freely propagate them (and apparently you can even rename them and sell them under your own trademark, which feels very wrong to me.)

I think Dr Pounders can answer that question best Dave. He is the research geneticist at the USDA/ARS Thad Cochran Southern Horticultural Lab, that works with Crape Myrtles.

http://www.ars.usda.gov/pandp/...



As you can see, this was being researched while Dave was posting the correct info.

dave said:

And the final answer to the question here is: No, these are not patented and you can freely propagate them (and apparently you can even rename them and sell them under your own trademark, which feels very wrong to me.)

It is a sad marketing ploy, to make more money. This plant is really being hyped as something new and exicting when it is just a renaming of an existing plant. Trademarks are not actually the name of the products. Plant Delight Nursery has a very good article on this topic.

http://www.plantdelights.com/T...

It is an unusual practice that just doesn't seem proper, even if it is considered legal. So, if i understand this correctly...Black Diamond Crape Myrtles are actually the work of Dr Pounders at the USDA/ARS Thad Cochran center, but Berry Nursery can make a bunch of money by Trademarking a name and selling them for more?

Moonhowl said: It is an unusual practice that just doesn't seem proper, even if it is considered legal. So, if i understand this correctly...Black Diamond Crape Myrtles are actually the work of Dr Pounders at the USDA/ARS Thad Cochran center, but Berry Nursery can make a bunch of money by Trademarking a name and selling them for more?

Actually it is not unusual, it is very common. And you are correct about Berry Nursery making a bunch of money just by changing the name. And the fact that Berry Nursery owns a trademark doesn't matter. The names that they have applied to these Crape Myrtles is Best Red, Blush, Crimson Red, Pure White, and Red Hot.

I enjoyed reading Cecil Pounders reply. That article by Tony Avent is very informative Jay, thanks for the link. I suppose we as buyers can mention something at our local nurseries. I've tried with Canna Tropicanna® seemingly without effect.