Just beautiful.

easy to see why! Absolutely gorgeous. Such a treat to find one that works well inside.

It is gorgeous! I can understand why you love it!

Glorious Jeri. Another rose made purposefully obsolete by DA roses limited.

Beautiful, Jeri! It looks like a large Purple Buttons!

Nik is right. This is one they've pulled from the market. And that's a shame, because it doesn't grow vigorously on its own roots. It you could get enough budded plants, though, it would make a terrific low hedge.

'Prospero' is a name registered to DA Roses, so without their consent (which will not be forthcoming, as far as I understand) the only way to obtain this rose commercially is under another name. Of course plant sharing is perfectly legal since, as I understand, the patent has expired.

Well, since I'm not a nursery it's no skin off my back, but for the sake of those who can grow it well, I feel badly that it's not available.

Very pretty. That color and form makes me think of Christmas. Poinsettias?

I could be wrong, but I understood the patent issue was an either/or thing. A nursery can sell either the new Austin introductions or the retired ones under their proper names, but not both. Several online nurseries list Prospero--and other retired Austins--in their catalogs. Whether or not they're in stock at the moment, though...

That depends upon whether you are considering the legal patent/trademark issues or the Austin licensing agreements. If the rose is patented, you must have permission and pay royalties for each plant produced (not sold, produced). That is a change in the market Austin caused. If the name is trademarked, as many of the early varieties sold in the US prior to his having a "legal presence" here, anyone can sell the roses without permission and without paying royalties as long as they don't use the trademarked name. For that, you pay a licensing fee and royalties. THEN, if you want a current licensing agreement to sell the new varieties, you don't sell the old ones. That's been pretty consistent with his licensing agreements for a number of years. Of course, Austin can sell whatever he wants. They ARE his.

So confusing! But I think I've got it now.

Kim, 'For that, you pay a licensing fee and royalties'

You seem to imply that if you want to sell old varieties under their correct name you need to pay the fee and royalties to DA. I'm under the impresion (but I may be wrong of course) that even if one were prepared to do that, DA will not as a rule provide licensing for roses they have intentionally 'obsoleted', which is most of their varieties that are out of patent.... Thus the only way in effect that one could commercially sell roses that DA have intentionally obsoleted, are trademarked and are out of patent would be to sell them under another name. As I stated in the 'Josephine Land' (aka Heritage) thread I find this practice to be unethical (though perfectly legal).

What happens often is that a nursery will buy a certain number of licenses for a particular rose and they may have some left after DA decide in their infinite wisdom that the rose is 'obsolete'. The nursery can still propate and sell this rose of course until the licenses (materialized in the green labels) are all used.

PS. What if this practice was introduced in music for example? What if Beethoven's concertos were trademarked as a name? Anyone could then record a Beethoven concerto but would not be able to sell the music as a Beethoven piece but only under another name.... Of course, old music cannot be trademarked but new music potentially could so even when the copyright runs out nobody could record and sell the music under the original name...

The other option is to use their 'AUS___' names, which are not trademarked -- and can easily be googled or searched on HelpMeFind.

:-)

~Christopher

Nik, the way it has worked here has been if you wanted the new roses, you can't sell the old ones. If you don't care about the new ones, you cn pay to sell the old, obsolete ones under the trademarked names, or not pay and have to use the AUS code names, as Christopher wrote. That's how many nurseries, like Vintage, have kept them in commerce.

Welll, I love the photo. Guess I'd best not lust after it though....

I got one this year from Heirloom Roses mailorder.

Most of DAs roses are named after figures from British literature. How can they be trademarked?

I think that the very early roses, or at least those DA considered 'unworthy' were not trademarked. I noticed today that he used (or allowed to be used) the name Emanuel twice; AUSuel in 1985, then AUSquest in 2000, which was released here and the U.K. as Crocus Rose. Both of these are protected, as is Constance Spry, I think. It was the early roses that were the 'literary' ones. There are nurseries here that sell both the earliest and newer varieties, just marking those that are under PBR, and with occasional variations in price, not using the AUS names. Not sure if the newer ones are TM though.

..I've often wondered why Austin's haven't named any roses after Jane Austen's characters or places in her books. I've tried to research this a little but cannot find a satisfactory answer, so I presume that either her family or the Jane Austen House and Museum - may have rights to exclusivity. I note that in Holland there is a rose called 'Pride of Jane', but this was developed at the request of the Dutch Jane Austen Society...and here we have a recent Harkness rose 'Pride and Prejudice' released 2013, and which I see prominently placed in garden centres, but again this was bred at the request of the Jane Austen House and Museum at Chawton, with some proceeds from the sale going to that property... so negotiations of some sort must have gone on there...

...David Austin Roses have of course released 'Jayne Austin', a family member, which may fool some purchasers, but otherwise, the only rose they've bred that can be connected with Jane is 'Winchester Cathedral' which is where she's buried... and one they could have chosen presumably without the need to defer to anyone else...

...you would think that a rose named after 'Elizabeth Bennet'... 'Mr Darcy'... 'Emma'... 'Mansfield Park'... etc. would likely be best sellers....

...regading the issue of trademarking, here is a photo of two labels from their roses 'Wollerton Old Hall' which has been 'TM' for some time and this years debutante, 'Desdemona' which hadn't at that time, have that 'TM', [I don't know if it does now]... but as you can see it says 'applied for'... I remember thinking at the time when I saw this, that how can they prohibit propagation without a licence, when it's only been 'applied for', and from that I infer not yet received...

I grew Prospero in its own roots for years. It is as pretty a rose as Jeri's picture demonstrates, but was definitely a feeble grower, even with minimal pruning. Eventually I gave up on it.

In those days I was an own-root snob, still my preference when there is not a compelling reason to grow a rose grafted. And there are compelling reasons -- feeble growth as is the case for this one, or a tendency to uncontrolled suckering, as is the case for many gallicas, rugosas, and some other OGRs of European species background.

You're absolutely right.
On the whole, I prefer roses on their own roots, but there are just some that are never going to make it that way. My experience matches yours. An own-root Prospero is a feeble plant at best.

I believe one can trademark a rose or any other commercial item with a name that is not trademarked in its original context as long as the item is irrelevant to the original context. In parallel, the fact that DA or anybody have trademarked a particular commercial name does not mean that some other item, not rose related, not competing and NOT DIRECTLY GAINING BY THE ASSOCIATION, cannot be named by that name.

Marlorena, firstly a patent which applies to the plant itself is different than the trademark which applies to its commercial name. Secondly, at least in the case of a patent, a pending patent status will prohibit the replication or copying of the item just as well.