I love the looks of the Black Diamond plants, especially 'Best Red.' They had a truck load of these at Lowes here and sold them all within 2 days. Every single time I would go people were looking them over. They are going to sell tons of them! I'm glad to know I can root cuttings of it, and don't have to worry about it being patented too.
Does the USDA not patent any plants they come up with? Because when I emailed the company that is producing these they told me the following:
"The way I understand it, the USDA decided not to issue a patent on the Ebony series. But they released them under the name 'Ebony Flame', 'Ebony & Ivory', etc., and so that remains the original cultivar name/s. I'm not exactly sure why they decided a patent could not be issued, but typically that has to do with not being able to firmly identify exact parentage of the plant or something else along those lines. So they were released as public domain plants. Therefore, for identification/nomenclature purposes, one would still identify the original assigned cultivar name as 'Ebony Flame', but J. Berry is using a Trademark name of Black Diamond TM Best Red to market the plant to the public.
To simplify, the name has not been changed (but it is not patented), it's just being marketed under the Black Diamond Trademark. Like Aspirin marketed as Tylenol TM...make sense? Now, if they develop through their own breeding program, any new colors for the series, they they could patent them under the Black Diamond cultivar name, and that would be the original name for the new plants. "
"J. Berry Nursery worked along side the USDA breeder to grow the crape myrtles and develop stock to be released onto the marketplace. When the USDA decided not to issue a patent for the 'Ebony Flame' plants (which are not old, they were only released within the last year), that meant J. Berry Nursery was free to invest in a personalized trademark on the series that they thought would be more eye-catching for customers. Hence, the Black Diamond trade name. It is a large investment on their part to do so, but they felt it would bring better exposure to the series. They also have Plant Breeders Rights on all current and future plants in the series, and rights to develop new colors in the series to be patented by them.
Please note that they also print the name 'Ebony Flame' on all the plant labels placed on the Black Diamond pots, so that customers know that it is the same series. There is nothing hidden here. Dr. Cecil Pounders, who originally bred the plants, has been quoted in response to questions about trademarking plants by saying "The practice of selling public domain plants under a trademark is legal and is not a new practice." Also, please know that the USDA does does a lot of breeding work, but they have to rely on private industry to pick up the plants and grow them and market them for home owners.
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. "
Saying they have "Plant Breeders Rights" is kind of silly since they used patented plants themselves to breed these and these were never issued a patent. LOL.