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Solving the Mystery of the Black Diamond Crepe Myrtle Series

By dave
August 2, 2013

This newly introduced Crepe Myrtle exploded onto the scene last year and had everyone talking about it. But is this really a new variety, or an older, already existing variety that has been repackaged and rebranded? I investigated the situation, and what I found will surprise you.

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Name: Sandi
Austin, Tx (Zone 8b)
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Bubbles
Aug 1, 2013 7:26 PM CST
Yep, those LSU "Tiggers" like to best Ole Miss!

http://www.youtube.com/watch?v=dPcTfEvv6B0
Name: Dave Whitinger
Jacksonville, Texas (Zone 8b)
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dave
Aug 1, 2013 7:35 PM CST

Garden.org Admin

I saw that video before and didn't want to mention it because I'm not sure why LSU is promoting the commercial copy over the original cultivar. And you're right, Dr. Pounders hails from MS. There's probably a story here that would take a journalism hat that I'm not ready to don. Smiling
Name: Sandi
Austin, Tx (Zone 8b)
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Bubbles
Aug 1, 2013 8:17 PM CST
Yes, I saw it earlier when I asked you about buying a Black Diamond. Since you had one, I drove back to the HD and bought two. The entire front of the garden center at HD was covered in 2 gallon pots of black crepe myrtles earlier in the day. When I went back, they had bunched the remainders into one display. Lots of people must have liked them as much as I did.
Name: Jean
Prairieville, LA (Zone 9a)
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Moonhowl
Aug 2, 2013 8:47 AM CST
If I may, I would like to address the "LSU touts Black Diamond" statements.

Dan Gill is a consumer horticulturist. He was not promoting Black Diamond vs Ebony, nor was the LSU AGCenter. As part of his job at LSU, he goes to various nurseries to see what is available to Louisiana gardeners each year. The "Get it Growing" series is strictly informational about what is new and in nurseries now. You can find a number of Jim Berry's Black Diamond Crape Myrtles in nurseries and big box stores, but unfortunately you would be hard pressed to find any of the Ebony series.Had the Ebony series been sitting in that particular nursery on that day, it would be the centerpiece of that days' video.

As distasteful as it may be, Jim Berry's Black Diamond trade name is quite legal...and what is the true controversy here is how the USDA releases these plants and others developed at ARS-USDA sites.

Dr. Pounders does not work for Ole Miss. He is employed by the Federal Government at the ARS- USDA station in Poplarville,MS. Additionally, he was not a student there either.
Ph.D., Alabama A&M University
M.S., University of Minnesota
B.S.,Auburn University

Name: Dave Whitinger
Jacksonville, Texas (Zone 8b)
Charter ATP Member Region: Texas Master Gardener: Texas Permaculture Raises cows I was one of the first 300 contributors to the plant database!
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dave
Aug 2, 2013 8:55 AM CST

Garden.org Admin

You coming in here with your facts and all. Smiling Have some acorns with my thanks. Smiling
Name: Jean
Prairieville, LA (Zone 9a)
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Moonhowl
Aug 2, 2013 9:37 AM CST
I tip my hat to you. Thank'ee kindly sir. Green Grin! As for the facts....I think somewhere along the line, Sgt Joe Friday must have been a relative...

Dan and I have been friends for a very long time and I was a bit concerned that this whole BD/Ebony "controversy" could be detrimental to his professional reputation. For a multitude of reasons, which I am sure you can imagine, he can not promote a particular grower, breeder or nursery, and would not knowingly do so.

If anyone searches for info on Black Diamond CM's, this site and every mention of BD here becomes a part of that search.To that I say Bravo, but in doing so, wanted to make sure that we were in no way creating problems for others.

While it may not seem right or moral or of high integrity, Mr Berry is within his rights to market these cultivars under his own name. What I see as the major concern with this is that it creates a huge problem for the consumer. How could you be sure that the plant you have is actually what you wanted? But, this becomes a matter for the ARS-USDA to resolve as they do not sell plants, they develop/breed them and release them to growers.
[Last edited by Moonhowl - Aug 2, 2013 9:40 AM (+)]
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Name: Clint Brown
Medina, TN (Zone 7b)
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clintbrown
Aug 2, 2013 11:56 AM CST
I think it's wrong and deceptive. What if someone already has one under the old name, but buys the same thing thinking it is new? It seems like fraud. Can we propagate ours and call them 'Black Beauty?'
Name: Jean
Prairieville, LA (Zone 9a)
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Moonhowl
Aug 2, 2013 12:39 PM CST
Hi Clint. It is very confusing to say the least. The way this ARS-USDA release reads, it is open to propagation and all they ask is that if you release a new cultivar, Ebony series be included in the parentage. http://www.ars.usda.gov/SP2UserFiles/Place/64040500/CrapeMyr...

Again, I think that is going to become a real problem in the future. I can say that the genetic material for the Ebony series has been deposited in the National Plant Germplasm System and is available for research. But having said that, I think the answer to your question is going to be yes, you can, but you could only trademark a name, you would not be able to patent the plant.
Name: Dave Whitinger
Jacksonville, Texas (Zone 8b)
Charter ATP Member Region: Texas Master Gardener: Texas Permaculture Raises cows I was one of the first 300 contributors to the plant database!
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dave
Aug 2, 2013 12:58 PM CST

Garden.org Admin

What is to stop someone from taking a non-patented daylily, registering their own name as a new trademark and selling it as a brand new introduction? The AHS, that's what. So why doesn't the USDA (who, as far as I know, is the registrar for crepe myrtles) put a stop to this?
Name: Clint Brown
Medina, TN (Zone 7b)
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clintbrown
Aug 2, 2013 1:08 PM CST
Wow. I'm taking cuttings of mine now to sell! I tip my hat to you.
Name: Jean
Prairieville, LA (Zone 9a)
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Moonhowl
Aug 2, 2013 1:10 PM CST
That is an excellent question. Perhaps it is one that either Dr Pounders could answer himself, or could refer you to someone in the USDA who could answer it. Dan mentioned earlier today that this was certainly likely to become a problem and one that the USDA needed to address.

I am still trying to understand how you can sell something that is not actually yours and it is legal. I do remember reading something in all of searching over the past few days about protecting Intellectual property and plant patents. I do think this whole situation may become rather unpleasant before it is finally resolved.
Name: Clint Brown
Medina, TN (Zone 7b)
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clintbrown
Aug 2, 2013 1:25 PM CST
The reason you can is because the patent for this plant wasn't approved. You can't stop anyone from selling a plant that has no patent. I think I read that this tree was too similar to another one called Delta Jazz. Maybe that's why it isn't patented.
Name: Dave Whitinger
Jacksonville, Texas (Zone 8b)
Charter ATP Member Region: Texas Master Gardener: Texas Permaculture Raises cows I was one of the first 300 contributors to the plant database!
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dave
Aug 2, 2013 1:29 PM CST

Garden.org Admin

You certainly can sell a non-patented plant, of course. Plant farms around the country propagate and sell non-patented plants all the time. But to rename it and trademark it? That's an entirely different thing.
Name: Jean
Prairieville, LA (Zone 9a)
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Moonhowl
Aug 2, 2013 1:37 PM CST
Clint, the reason this plant is not under patent is because it was developed by Dr Cecil Pounder, an employee of the USDA at a research facility in Poplarville, MS. The info mentioned about Delta Jazz was posted on another site and was attributed to Jim Berry of Black Diamond nursery.
Name: Clint Brown
Medina, TN (Zone 7b)
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clintbrown
Aug 2, 2013 1:38 PM CST
I read in the document they used the Chocolate Mocha variety in their crosses. That tree is patented. It's like the people who own that one are being robbed of being able to come out with new colors. It's like these people took their tree and crossed it with a red tree to get one just like it that is red. There is more to this story that isn't being told. Someone even said the leaves on Black Diamond are cupped like that one. There has to be a good reason why the patent wasn't issued.

If 'Chocolate Mocha' is patented, why isn't this one?
http://www.google.com/patents/USPP21540
[Last edited by clintbrown - Aug 2, 2013 1:41 PM (+)]
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Name: Dave Whitinger
Jacksonville, Texas (Zone 8b)
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dave
Aug 2, 2013 1:43 PM CST

Garden.org Admin

I think some of the Whit cultivars were also used in the breeding, and those are patented, too. Crepe Myrtle (Lagerstroemia indica Dynamite®)
Name: Jean
Prairieville, LA (Zone 9a)
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Moonhowl
Aug 2, 2013 1:53 PM CST
Yes, the Whit cultivars were also used, and were duly noted in the list of parent plants. If you take a look at any new cultivar of a plant, there should be a list of what plants were a part of the process. Daylilies are a good example. If you look at info from the AHS, each new cultivar registered lists its' lineage. I may be wrong, but Chocolate Mocha may have been the first Crape Myrtle of its type...dark burgundy/brown leaves. That is the operative word, FIRST.
Name: Clint Brown
Medina, TN (Zone 7b)
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clintbrown
Aug 2, 2013 1:54 PM CST
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.

[Last edited by clintbrown - Aug 2, 2013 1:58 PM (+)]
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Name: Sandi
Austin, Tx (Zone 8b)
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Forum moderator Charter ATP Member I was one of the first 300 contributors to the plant database! Garden Ideas: Master Level Plant Identifier Master Gardener: Texas
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Bubbles
Aug 2, 2013 1:59 PM CST
Moonhowl
As an ole Mississippi gal from the days of MS/LA football rivalries, I only found the correlation of the video to the current subject amusing. I would have asked that the post be deleted except that it has made for an informative dialogue.

After seeing the LSU video and reading Dave’s data base entry about his black crepe myrtle, I bought two plants. Did I buy them based on the LSU video and Dave’s data base entry? You betcha! Would I have purchased the Black Diamonds if I had known they may have actually been rebranded Ebony? Probably not, for two reasons. I’ve read about people offering plants to others to grow out and being disappointed (or furious) that one of those trusted people sold their plant to someone to be used as tissue cultures. And for another reason, had I known it wasn’t truly a new introduction, I just wouldn’t have been as interested. They were really expensive for two gallon pots. I would have hunted for the Ebony.

I commend you for sticking up for your friend, but I truly don’t feel his reputation will be damaged by my post. Anyone looking for black crepe myrtles, as I did, can find that video just as easily as they can find ATP. The LSU site only mentions:

“The LSU AgCenter provides important tips to help your garden grow well. Join LSU AgCenter Horticulturist Dan Gill as he explains how to "Get It Growing!" For more information, visit our website at [url=www.lsuagcenter.com.”]www.lsuagcenter.com.”[/url]

Maybe he could mention on the videos that he doesn’t promote the plants he’s featuring. He could even post here!

Name: Jean
Prairieville, LA (Zone 9a)
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Moonhowl
Aug 2, 2013 2:22 PM CST
Hi Sandi,
It was not so much your post that concerned me, but given the topic and as much buzz as it is generating, I truly felt it was necessary to make sure that anyone reading this info would not come to the wrong conclusion. The AgCenter and all who work there should not give the impression that they in any way favor or are biased by a nursery or a grower. That was my only concern.

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