WARNING: deceptive HGTV perennials

[Tigger]

This is a topic that blew up yesterday (for good reason) on the Hosta (AHS) facebook page.

There is a fairly new line of "HGTV HOME" branded plants, including annuals, herbs/veggies, perennials, and woodies. This line is being managed by Agricola Management Company. I do not know where the plants are being produced.

Looking only at their list of "Essential Perennials" (you can download the catalog here) you can note that they are using a very deceptive practice in using new, trademarked, names for plants that are already established in the trade. In some cases these are patented plants, and we're trying to find out if the patent-holders are receiving appropriate licensing fees for sale of these plants (under any name).

In some cases the tags give the established cultivar names (in small print, or on the back), but in other cases it is not clear that they do.

The case for hostas is particularly notable, including:
'Orange Marmalade' (patented) is being sold as Citrine Supreme™.
'First Frost' is being sold as Blue Dew™.
'Rainforest Sunrise' is being sold as Goldmine™, although the tags list the cultivar as "Rainforest Surprise".
'Northern Exposure' is being sold as Leprechaun's Loot™ (it seems there is a whole set of leprechaun-named perennials).
'Bedazzled' is being sold as La Vista™. Notable in two ways: I confirmed that Don Dean (registrant of Bedazzled) had no knowledge of this, and because 'La Vista' is already a registered cultivar name (by Walters Gardens).

Sigh. Their heucheras get a similar treatment, along with just about any other "essential" perennial you can think of. I note, though, that the daylily has escaped the scourge. Maybe the American Hemerocallis Society put a cease and desist hit on them? We'll see if the American Hosta Society can do anything.

I can almost understand rebranding a plant with a cumbersome historical name like H. ventricosa 'Aureomarginata', but to do this to plants created by, named by, and registered by real people is disrespectful and deceptive. And for cultivars given unpronounceable names (like Always/Encore azalea 'HOMLEB'), why isn't the original trade name honored? (like Penny's Pink® hellebore being rebranded as Emily's Pink™!)

It appears these plants are being sold by Menard's and TruValue hardware stores (that is, not in Lowes/Home Depot-type big box home/hardware stores). If you see these plants elsewhere, please post here. And please: do not buy these plants! (at least without knowing what you're actually buying)

I have written the Agricola people (using their online contact form), and will let you know if I hear an answer. I did write to one of the downstream wholesale reps (Van Essen Nursery), who said to take my beef to Agricola. HGTV's website tells you to contact Agricola about these as well.

David Teager

[Tigger]

For the record, here are the hostas in their catalog, with registration info.
Hosta la Vista™ = hosta ‘Bedazzled’ (Don Dean 1999)

Blue bounty™ = hosta ‘Blue Vision' (P Aden 1976)

Blue dew™ = hosta ‘First Frost’ (P Scolnik 2002)

Steal the Limelight™ = hosta ‘Morning Light’ (G. Van Eijk-Bos & D. van Erven 2000)

Leprechaun’s Loot™ = hosta ‘Northern Exposure’ (Walters Gardens 1997)

Citrine Supreme™ = ‘Orange Marmalade’ pp16,742 (Solberg 2002)

Goldmine™ = ‘Rainforest Sunrise’ ('Rainforest Surprise' on tag?) (Winterberry Farms & J. Anderson 2003)

[Tigger]

(Cross-posted from AHS facebook page, where it might get deleted)

Re: HGTV HOME hostas. A follow-up to the thread from May 9:

I just got off the phone with two representatives from Agricola Management. The conversation was, at times, a bit heated. They vehemently deny any deceptive practices (and assert that they are paying all appropriate royalty/licensing fees) in their rebranding of cultivars. They claim this is done all the time. I asserted that this is NOT done "all the time" with hostas.

Their position is that the AHS membership is a niche group of aficionados who might care about this issue but the rest of the 350 million Americans don't. They listened to my argument that the name of the plant belongs to the person who developed it and released it to market, but were not persuaded that that gardener deserves the respect of having the plant sold under that name. They seem to believe that all the plants on their list were being marketed with permission of (and payment to?) the developer, something I assured them was not correct. They also assured me that they would ensure that the hosta's registered cultivar name would appear on all their labeling, but they don't seem to see how this is confusing at best, and deceptive at worst.

Then they got huffy that the other post here [AHS facebook group] contained wild and libelous statements (IMO it doesn't, but we should beware), and wanted me to provide the 501(c)3 certification for the AHS. I directed them to the contact page of the AHS website. I tried NOT to be acting as a representative of the AHS leadership, but only as a concerned gardener who is a member of the AHS and a contributor to this facebook page. They were unaware (and perhaps uncaring) as to the AHS's role as the ICRA for hostas.

Apparently someone else called them last week about this practice; they at first thought it was me, which contributed to the "tone" of the early part of our conversation.

So, caveat emptor and all that. To the mods/AHS board, I'm sorry if I stepped in this in any way. I'm still curious to know what "permissions" might have been given that put these hostas into their stable.

David

[Chris_W]

Hi David,

I'm not surprised to hear this is happening again. Yes, it has happened before but it seems to be happening more on plants these days. In this case, however, like other cases (remember Hosta Shadeseeker?), I believe they are using the trademark the wrong way. I've heard before that you can't trademark a specific cultivar and that a trademark can only cover a group of something like a series of plants.

For example, Walters Gardens has put a trademark group name on all of their Proven Winner hostas so that now they are all part of a group trademarked as "Shadowland". So you have Hosta SHADOWLAND tm 'Empress Wu', Hosta SHADOWLAND tm 'Seducer', Hosta SHADOWLAND tm 'Autumn Frost', Hosta SHADOWLAND tm 'Wheee!', Hosta SHADOWLAND tm 'Coast to Coast'. They also have trademarked names groups of Sedum (Rock n Bloom tm), Monarda (Sugar Buzz tm), Hibiscus (Summerific tm), Heuchera (Dolce tm), Daylilies (Rainbow Rhythm tm), etc. But in all of these cases the trademark covers a series of plants and not one specific cultivar. That would be the proper use of a trademark. Proven Winners chose most of these trademark names on their own (I think Dolce is Walters though I'm not certain) and didn't contact the introducers of all these plants about it, so yes, that may have bothered some people, but since they haven't really changed or tried to hide the cultivar name I think it is within their own right I would guess. The things about these items that DOES bother me is that the cultivar name is not always that evident so people are asking me to tell them more about things like "Daylily Rainbow Rythm" and think it is a cultivar name by mistake.

I will try to find the information on the proper uses of trademarks in this case since I think they aren't using them quite right here. It doesn't sound like they are trying to be deceptive necessarily but they may not be aware of the proper use of a registered trademark name.

[Tigger]

Interesting take, Chris. But when people are giving [invalid?] cultivar names like Evipoo05 (a clematis) and a trademark name would be expected, how does that play out?

They called me (two on one) and I was a bit unprepared for the conversation. It got really testy when they found out I was a research scientist in the drug world. "Interesting," he said, wheels in his head turning, and then they let into me for the "deceptive" practices of drug companies' product names. In the end, they simply fail to see that for hostas, anyway, the names put on these plants by the originator (often a simple home breeder, and less often a big conglomerate like Walters or Q&Z) have any value. "But we're just trying to make hostas more popular! Isn't that what you want?" they said.

After it was all done, one guy sent me an email offering to send one of their reps to the AHS convention, to teach us all about trademarks and plant patentes, since we seemed "confused!"

Stirring the pot, I sent an email to Dan Heims at Terra Nova to see what he thought about the new names for their heucheras.

David

[kHT]

Thank you David for your bring this to us and I guess we all need to check on the plants we buy.
I will not be purchasing any of their plants. The Brugmansia group has seen this happen many
time and tracking the names are important to some folks. The common folks see a pretty plant
and who cares about the name. I was at a local nursery this past weekend reading lables and
one of the sales clerks came up to me to see if she could help.....long story short, she had no
clue. It's pretty!! At another nursery I was told that the the Datura I was looking at had no name
and the other was special!! Boy was he shocked to find out it's on the County's list as weeds and
they don't want folks to grow it.

Go get them and I'm sure Mr. Heim won't be happy.

[Chris_W]

Here is a good article about the use of trademarks for individual cultivars from Tony Avent - Plant Delights. It was written in 2005:

http://www.plantdelights.com/Article/Tr ... rticulture

[Tigger]

Wow. Thanks for that link. I'll send it back to the folks at Agricola, who think we're the ones who are confused.

We could take Tony's advice and bring it up with one of the national gardening organizations. And try to take it to HGTV to embarrass them.

David

[Bill Meyer]

Hi All,

The problem with this whole thing in my opinion is that it is just intended to trick people into thinking they are offering their own line of new hostas. It is really hitting bottom. They offer nothing of substance, just cheaply bought hosta cultivars dressed up in different pots, labels, etc, with deceptive new names. Sure, if you read the "fine print" you can see on the back of the label that it is just a renamed older cultivar, so I suppose legal obligations are met.

I think it's an attempt to mimic Proven Winners to cash in on some of their sales. Proven Winners hostas are the real thing. They want exclusives and will not accept a hosta into their pots that was available anywhere else, and they've been very picky so far. They called their hostas the Shadowland group. If you're curious, they did not ask me about that because I have the patent on Wheee!. The Proven Winners plants are real new varieties chosen by PW.

I think the HGTV ones are just cheap fakes, like costume jewelry, intended to fool people into thinking they are exciting new exclusives. HGTV should be ashamed to stoop to such a cheap marketing tactic. It degrades their brand image bigtime.

........Bill

[Tigger]

Don Dean and I are in discussion on this, as he has some skin in the game (and I'm a pain in the butt). My advice is to take it to customer relations at the HGTV brand organization, who might not like some sub-contractor tarnishing their brand name with questionable marketing practices.

I remember that Martha Stewart Living™ did this with some plants, including Hosta "Cheesecake," which appeared to be a rebranded 'Allan P. McConnell'. (Where 'Cheesecake' is a registered hosta, a white-centered sport of 'Vera Verde'.) And we see how that turned out.

David

[LucyGoose]

I work in a Menard's....I will look....