Trade mark for plants


If you are registering a trade mark application relating to plants, there are some issues you need to be aware of.

Plant names

In the plant industry, plant names are used to name and identify particular plants, and differentiate them from other plants. Plant names are subject to scientific and plant industry naming conventions and fall into a number of different categories:

  • scientific nomenclature (particularly genus and species, which identify every plant by a unique binomial)
  • invented names to further differentiate plants within the same genus and species, often referred to as varieties or cultivars (cultivated varieties)
  • an alternative invented name, often called a synonym
  • other invented names, such as trade names and trade mark designations, which point to a specific variety or cultivar
  • common names, which often reflect a characteristic of the plant.

The name of a plant variety cannot be registered as a trade mark because it is not capable of distinguishing one trader's plants from another.

A plant variety name or a common name for a plant describes a particular plant however, a trade mark does not name any particular plant; it identifies the trade source of the plant, like the grower, producer or seller.

The table below shows examples of these different naming conventions applied to two particular plants:


Genus

Species

Variety/cultivar

Synonym

Common Name

Acacia

cardiophylla

'Gold Lace'

'Kuranga Gold Lace'

Wyalong Wattle

Acacia

baileyana

'Purpurea'

n/a

Purple Leaf Cootamundra Wattle

Note: These plant names cannot perform the function of a trade mark.

Some invented plant names appear as varieties or synonyms on the Plant Breeder's Rights (PBR) Register and these are precluded by trade mark legislation from being registered as trade marks. In the same way, some plant names that do not appear on the PBR register will be difficult to register as trade marks.

Trade marks protection available for plants and plant material

A proposed trade mark should be used:

  • if applied to a number of different plants
  • if applied to a single plant, always applied in conjunction with the accepted scientific, common and variety/cultivar names for that plant.

Words that serve only to describe, define, or name a particular plant do not fulfil the requirements of registrability under the Trade Marks Act 1995. This principle applies to any plant material or produce that needs to be identified by type or kind, including live plants, seedlings, seeds, grains, fruits and vegetables, flowers, and reproductive material.

Last Updated: 05/9/2011