Attack of the Plant Police

November 11th, 2014

The letter from the Washington lawyer came both to me and the top management of Pa. Media Group, which publishes my garden writings in The Patriot-News and on Pennlive.com.

Don’t forget the “R” symbol… or else!

We were being accused of “misusing” the Knock Out® rose name in a 2012 blog post and were being given 10 days to correct it.

The letter didn’t say, “Or else what,” but we got the point.

Our crime? Enclosing the rose’s name in single quotes as opposed to using all capital letters with the little “R” registered-trademark symbol next to it.

That’s right, gardeners. The plant world now has punctuation police, and if writers don’t use the plant name the way the company wants it used, we might get a lawyerly threat.

In this case, Pa. Media Group’s New York lawyer assured us that companies can’t dictate how third-parties, such as media, choose to punctuate product names (so far).

In other words, you can’t get sued for saying Kleenex instead of KLEENEX®-brand tissue in a newspaper article.

That this kind of letter would happen in the first place really perplexed and concerned me.

The perplexing part is why a plant company would send a nasty legal letter to the very writers who help make its products a success.

Why not more of a courteous educational appeal? I’m thinking something from the company like, “Thank you for mentioning KNOCK OUT® roses. We appreciate your help in making it such a popular plant. Here’s our dilemma/concern and here’s what you can do to help. Could you please blah blah blah… Thanks for your cooperation.”

My concern was how many of these letters Conard-Pyle’s lawyer was sending out and to whom. I kept picturing a fledgling blogger or Facebook or Pinterest poster getting a similar letter and worrying about getting sued or having his/her site shut down for punctuation abuse.

In our case, it “only” wasted multiple executives’ time and cost money in paying the New York lawyer to answer the Washington lawyer.

My bigger concern was that to avoid future letters like this, publishers would just advise garden writers to stop mentioning specific plant names (which is where we were headed).

Or worse yet, to just get rid of the whole, fluffy, non-essential, trouble-causing field of garden-writing altogether (which many papers have done in the last 10 years for economic reasons).

Fortunately, Conard-Pyle’s president, Steve Hutton, cleared this one up in a hurry with an apology.

I had called and emailed him my concerns… also to make sure he knew C-P’s lawyers were targeting writers.

Hutton said the company’s intent was not to target media “as it is well-known and well-accepted that newspapers, magazines and similar publications almost never include TM or ® notations when mentioning a trademarked product of any sort, much less roses.”

He also said the company intends its name-protection approach to be educational, “not barking and snarling but by informing about the nature of a trademark and how to properly use ours.”

A check with the Garden Writers Association determined that I was the first to report something like this – not only from Conard-Pyle but from any plant company. So maybe it was an isolated mistake and not the beginning of a crackdown on the baffling world of plant names.

Time will tell.

I fully understand why companies have good reason to police their brand names, even though they’re the ones who created the confusion we now have in the first place.

Soon after World War II when named varieties came into vogue, an international naming convention was enacted to standardize plant names.

The basic format was that the genus and species come first and are italicized. Then if there’s a particular variety or cultivar (“cultivated variety”) that exhibits improved traits of that species, it goes in single quotes without italics.

Example: Ilex verticillata ‘Red Sprite.’

This is ‘Red Sprite,’ not “Red Sprite,” RED SPRITE(R) or Red Sprite.

The problem is that a variety name in single quotes can be used by anyone who sells that plant.

So what happens if you breed or discover a plant and want to maximize profits by retaining exclusive rights to sell it?

You can do that by trademarking your name (™), or better yet, paying to register it with the U.S. Patent and Trademark Office, which gets you an ® after your name and much better, longer name protection.

What eventually happened was that plant introducers started giving meaningless variety names to new plants, saving the “catchy” names used in marketing for trademarks.

That’s why the “real” name of the original Knock Out® rose is ‘Radrazz.’ Hardly anybody knows this rose by that name, and it’s purposely downplayed in marketing.

Conard-Pyle is especially sensitive about Knock Out® because it’s become so popular that many people think it’s a kind of rose and not a particular trademarked selection.

When products become so popular that they threaten to become household or generic names, the company owning the original loses trademark protection. Then anybody can sell a “knock out rose” or “kleenex” (note to lawyers: no caps or R’s used in the preceding sentence for hypothetical, illustration purposes only).

One way to head that off is to build a body of evidence showing how aggressively you’ve tried to protect your name. Threatening letters to “misusers” is one way to do that.

Conard-Pyle already has found cases of growers propagating and selling roses as Knock Out® roses without paying for the proper license fees to Conard-Pyle. That’s stealing and should be policed.

I also agree that companies should police their own licensees (growers and retailers selling the trademarked products). That’s part of the deal for sharing the profit of a Knock Out® and such.

But threatening writers, bloggers or possibly online posters who don’t put an ® next to your product? That’s a different animal.

The big problem for someone like me is that I can’t punctuate plants the way companies would like even if A.) I managed to keep track of every little intricacy, and B.) tried hard to give every ® and ™ their just due.

Here’s why. Most media have their own punctuation and grammar policies. One widely used guide is the AP Style Guide, an exhaustive and ever-changing document that dictates how writers should handle all sorts of language road mines.

For plants, AP doesn’t accept international naming convention. It says genus and species don’t get italics, and varieties get double quotes, not single quotes. Example: Ilex verticillata “Red Sprite.”

As Hutton alluded, the Guide also pooh-poohs the use of all caps and trademarking symbols in brand names. I suspect one reason might be the historic technical difficulty of getting a keyboard to make those little ®s and ™s. But going symbol-less keeps things simpler and doesn’t cater to marketing benefit over reader clarity.

Heading down the symbol road also makes you wonder what’s next. Are companies going to trademark colors or start rotating letters in their names, then threaten a writer who doesn’t use a sideways purple K?

Agree or not, the AP ruling is Tylenol, not TYLENOL®, or Big Mac, not BIG MAC®.

That means if I say Knock Out, I’m OK with AP but potentially on a trademark lawyer hit list. If I say KNOCK OUT®, it gets knocked down, gouged of its ® and leads to a note from the editors telling me to follow AP style next time.

The bottom line is that George gets in hot water either way.

Wish me the best as I try to write about viburnum ‘Winterthur,’ viburnum BRANDYWINE™, viburnum BLUE MUFFIN® and the new champion of symbol anguish, the Proven Winners spirea that features a ™ and an ® in one name – DOUBLE PLAY® BIG BANG™.