Thanks for this great informative article Dave and the exhaustive research Moonhowl, especially all the great background information.

I'm particularly glad that the database entries list the Black Diamond™ names in the Also sold as field instead of as a Trade name, which would take precedence. I hope future plant proposals of this sort are discussed in the Plant Database forum first, otherwise there is a risk of the name being noted as a Trade name.

eclayne said:I'm particularly glad that the database entries list the Black Diamond™ names in the Also sold as field instead of as a Trade name, which would take precedence. I hope future plant proposals of this sort are discussed in the Plant Database forum first, otherwise there is a risk of the name being noted as a Trade name.

If Dr. Pounders is correct that this practice will increase in the future, and I think he's right that it will, then we're going to need to establish a clear policy of how to deal with these.

For sure, the original cultivar name takes precedence as the cultivar, especially when it's been registered at the appropriate registrar.

A trade name will only be used when it is a patented or otherwise protected plant and the owner has given it that name.

Any other names given to it will be in the "Also sold as" field.

That seems a very sound and equitable plan. As fast as plants are being hybridized and reclassified these days, that would cover all bases. It is my hope that discussions like this will help folks be more aware of how important and involved the naming of new plants has become.

dave said:

If Dr. Pounders is correct that this practice will increase in the future, and I think he's right that it will, then we're going to need to establish a clear policy of how to deal with these.

For sure, the original cultivar name takes precedence as the cultivar, especially when it's been registered at the appropriate registrar.

A trade name will only be used when it is a patented or otherwise protected plant and the owner has given it that name.

Any other names given to it will be in the "Also sold as" field.

I've updated the Canna Tropicanna® entry to follow these guidelines. It is a somewhat similar naming situation where the Canna was initially introduced in the UK as 'Phasion', then Durban and finally Tropicanna by three separate parties. The issue was brought before the EU court which deals with Plant Breeders Rights, where 'Phasion' was upheld as the registered cultivar name. The plant is still a nursery mainstay with the registered trademark name Tropicanna®.

What a great bit of information on this crape myrtle. Thanks, Dave, for bringing it to the forefront.

And what a great thread taking the topic even further. Moonhowl, thanks for contributing your info, too!

Shoe (CM lover and glad to learn of a new variety and its history)

Maybe I'm missing something here, but this doesn't seem right to me whatsoever.

Ultimately, the plants are simply beautiful and the goal of J. Berry Nursery is to get them out into the marketplace as quickly as they can, so gardeners like yourself can get access to them and enjoy them. "

If I am understanding this right, Man A hybridized a plant. Man B later renamed the plant what he wanted and told everyone it was "new" and convinced the USDA to legalize his fancy scheme so he could sell them to folks who thought they were buying his plant, a new variety, and make a wad of money. Now he may have not printed all that on the tag but that is what the consumer is led to believe. Is that the boiled down version?

The nursery who is promoting the said plant somehow washes their hands of the ordeal saying they are only trying to make people's yards pretty. lol What if the music industry started taking Man A's song, letting Man B sing it, and then rename it and then say they are only trying to make pretty music available to everyone?

I am not very educated on all this topic, but lets face it, most of the public isn't, so I would say in that regard I am the typical consumer. On the one hand, I just want a nice plant and I don't care who hybridized it or where it came from or whatever. On the other had, I think someone in the USDA has their hands in someone's cookie jar, that or they are eating donuts over there. Probably both, after all they run by the Gooberment. Legal or not, it all seems in bad taste to me. Just because something is legal doesn't mean you shouldn't think it through first. I wouldn't want to be Man B and I sure would be embarassed if I was USDA.

In the case of daylilies, I don't know that they are patented. I think a handful of them are, but in general they are not. There is really nothing I suppose that prevents Man B from renaming a daylily and selling it. I know that it happens. Just look thought some fakely colored junk mail flyers and look up those names on AHS, most of the time they don't exist as registered names. But who is going to do anything about it? It isn't really a mainstream practice-MOST daylily nurseries are legit. Those of us that know daylilys, can see this kind of thing coming. Those who do not know much about daylilies don't care anyway. But the point is, it may be "legal" or they may get away with it or whatever, but it is generally frowned on, and called out when it is discovered, and those few nurseries who do this are the kind that get poor ratings on Watch Dog.

I bought one of the CM at Home Depot, and I don't care if it is old, new or what the name is. I liked the plant. I will admit that I thought it was a NEW cultivar. I don't know if it said that on the tag or not, maybe I made a hasty assumption. At any rate that doesn't bother me. What bothers me is that, it seems like the hybridizer got ripped. Legal or not, I think it smells rotten. And even more disappointing that our taxes pay to support the USDA, an office that is supposed to protect the hybridizer and the consumer and prevent this kind of thing, that the public should be able to TRUST> nothing trustworthy going on here. All seems deceptive.

It's like fraud that's not illegal. Does anyone know of a source of them under the original name? I couldn't find one.

Clint, in the link posted here,near the bottom of page 2, Dr Pounders gives his e-mail address and says anyone seeking more info about the Ebony series or looking for a list of growers can contact him at:

[email protected]


http://www.ars.usda.gov/SP2Use...

I hope that helps.

I'm shocked that a Google search turned up nothing. Something is fishy about this story.

A Google search of what exactly ?

I searched for the Ebony Flame and others and found none for sale any place. Even on Dave's old site there is not one vendor listed that sells 'Ebony Flame.'

Clint, if you read the comments below the pictures on that site, you will see that HalleckHort states that it was developed and released by MSU and is being sold by Berry Nurseries under his Black Diamond trademark. Below that statement, Vossner says it had tags for both names, Ebony Flame and BD Best Red.

I would have to imagine that since the release was made this year (Feb/March) there may not any other nurseries with enough proven stock to start selling to the public... I can not say why Black Diamond has so many to release. Anything said would be pure conjecture on my part. If you want a list of other growers, you have Dr. Pounders' e-mail address, and all you need do is request one.

Thanks. I was just shocked that nobody can find the plant for sale anywhere under the original name. It's just odd. It would seem that it would be cheaper to get those too because they aren't having to promote a name and set up a fancy website under a new fake name that is trademarked.

well if the trademarked plant becomes high demand, perhaps the older variety w/o a fancy name will make a reappearance in a few seasons? As long as it is sold under it's original name, why not?

I'm thinking about rooting some and selling them for about 10 dollars on ebay. Crape Myrtles are among the easiest of trees to root. At least they are to me. I will have several rooted in no time. Mine are called 'Clint's Black Beauties™' and will be available soon. I bought 2 of these. I think pruning is a good idea now!

Is there a pattern of behavior here? Weeping Japanese Cherry (Prunus Snow Fountains®)
Berry Nursery. Note PPAF (Plant Patent Applied For)
Missouri Botanical Garden
Trademark. Note Registration Date of November 5, 1985 and Owner; Last listed owner being LAKE COUNTY NURSERY.
http://www.lakecountynursery.com/lcns%20sell%20sheets/SnowFountains.pdf
A tidbit from Oregon State

Why do they have PPAF when the plant is not going to be patented? That is very misleading. They can't patent that plant.

Here is what Mr. Berry sent to me about the 'Black Diamond' ordeal:

"Black Diamond and Ebony Crapemyrtles are the same. We brought the Black Diamonds to market in 2012 Black Diamonds Crapemyrtles. Black Diamonds is our, J Berry Nursery's, registered trademark. Ebony Crapemyrtles is their "legal name", as designateed by the government. Under a US District Court Agreement J Berry Nursery agreed to identify plants being brought to market by being marked with their name and ours.
The government finally under court agreement did the release of the plants this spring. Plants often have multiple names. These plants are not patented and therefore can go under any name.

J Berry Nursery is very effectively producing large quantities of these beautiful plants for hundreds of thousands of landscapes. We are very happy to make so many others happy by providing them a way to enjoy the Black Diamonds in their own landscapes.

With great difficulty and cost J Berry Nursery cooperated via Material Transfer Agreement and court settlement agreement, with the USDA to get these plants to market. We are proud to be doing what we are doing, despite our government trying to prevent us from doing so."

Does anyone know where we can read these court settlement agreements online?

http://dockets.justia.com/dock...

The most recent is February 20th, 2013. The US was the plaintiff suing J Berry Nursery. I don't have a PACER account so I can't lookup the actual docs.

I Found out that 2 months after the court case the government gave that same company a grant to promote Black Diamond CrapeMyrtles. It's like one grower is being preferred to grow these trees even though the tree was developed from patented plants using tax payer dollars. A good reporter could write a very interesting article sbout this process.

With great difficulty and cost J Berry Nursery cooperated via Material Transfer Agreement and court settlement agreement, with the USDA to get these plants to market. We are proud to be doing what we are doing, despite our government trying to prevent us from doing so."

Oh, wow, I can just feel the suffering of their sacrifice clear down in the depths of my bones. LOL I bet they nearly went bankrupt trying to make sure folks had access to these...vital plants.
Just as every American deserves a chicken, there should be a black diamond in every pot!