Yeah, I really don't understand their decision. Making the old classics so hard to find seems to create a demand for them.

diggerdee: love your sense of humor. I was thinking about buying Jude this morning from LongAgoRoses (after 3 Judes died on me as own-root) !! You rescue me from "Jude addiction".

I received the same email from Heirloom, and I am perplexed about their decision. If these roses were out of patent, anyone nursery should be able to sell them, and if they were popular items, why pull them off the stock? If they were not popular items, why their prices are higher than other roses ($54 DA rose vs other roses at $40)? Or, maybe because the retail nurseries were upset about the DA trying to monopolize the business? Hope someone with inside knowledge could give us some explanation.

If i am not mistaken, DA will not allow newer roses to be sold by a nursery if they continue to sell older varieties whose patent has expired. A lot of nurseries have been forced to make a choice.

Yes, I've heard from a nursery that DA has lawyers that are harassing them to stop selling the older varieties.

I would also point out that I think the only ones they're "retiring" are Abe, JtO, and GT--they just had pictures of other DA roses there, probably for people who are DA fans to look at.

Chris and Maggie, I think this is true, but last year even the nurseries that sell the later, patented Austins only, got short changed by Austin (Edwards here in Boise is an example). Was it a legitimate Austin shortage or business finagling? One thing to remember is David Austin Roses is a business that wants to stay in business. They want to protect their intellectual property, and I don't blame them. These businesses are not some higher calling. So I try to see both sides of the problem. I know what it's like to have my intellectual property stolen, and it's a serious thing. Diane

I'm not sure I'll ever know the entire story, or what the extent is of "right and wrong" done by DA as a company. And the more I learn about it, as well as the more I learn about some other people involved in the rose business, the more disappointed I become in people in general. Not that I should be surprised.

Thanks for all the responses! I'm a bit confused so let me see if I have this right. The patent on DA roses expires in 20 years. When the patent expires, DA will not allow a nursery to sell newer varieties if they still sell the out-of-patent roses. So nurseries have to decide to sell either the newer or the older varieties. So, is then the only place to get the older varieties directly from DA? Do they continue to breed them?

I'm a bit torn philosophically. I get rose-breeding is a business, and DA certainly deserves to make money from their work. But I'm assuming many other breeders' roses have patents expire, and those roses are still available. Idk....

Thanks for the feedback everyone!

:)

Dee

I think DA Roses did have contracts with various nurseries in the US and they stipulated which varieties the nursery could sell or not. That seems within their rights. Nobody had to sign a contract with them but if they wanted to sell the newer varieties they did. Then this year, I think DA Roses withdrew the contracts for most of the US nurseries.

It is true that the plant patents last for 20 years and after that it is legal to sell them. I don't understand how DA Roses can harass a nursery to stop selling the old, unpatented varieties.

It raises a question, whether a patent should be for forever or is 20 years ok. Why 20 years? What is the reasoning? If someone bred a rose, should nobody else ever be able to propagate and sell it? That would certainly change the roses available in commerce.

What about drugs? The patent on Tylenol expired I believe, and many generics are offered at lower cost. Should Tylenol have complete control over acetaminophin forever?

Diggerdee, some nurseries still offer the old Austins but most are required to use the code names, not the trademarked commercial names. I have spoken with a couple of nursery owners who don't seem interested in selling old Austins with their code names which they used to sell under contract. Like there is something disreputable or sneaky about using the code names. Or I guess it's a matter of once being on the same page with DA Roses and then going contrary to their wishes. DA Roses is a big entity to stand up to. I think a nursery can be upfront about it, within the law, and keep some really great roses available. I would like to hear more about this nursery being harassed though. On what basis?

I really don't know more than that, I didn't pry about it and no more information was offered. But that nursery only offered older Austins, so I don't think it was a case of a contract being revoked, since they didn't offer any of the newer varieties.

Thanks for the added info! Yes, the whole area of patents and rights, I guess one could argue that it's not black and white.

But good to know that the roses can still be sold under the code names. I'll keep my eye out. I don't know why some nurseries wouldn't want to sell them that way - I see roses listed like that fairly often. Perhaps they think a casual rose buyer might not fall for a rose without a "romantic" or "catchy" name lol.

Thank you again everyone! Off to go get some gardening in on this beautiful day!

:)

Dee

The plant industry is misusing trademark names. A trademark name should indicate the source of a product and not the specific product itself. If the name of a specific rose bush is commonly known by its trademark name, then anyone can sell it using the trademark name.

Patents are different, a patent holder has the exclusive right to propagate a plant for 20 years. No one else may propagate the plant without the permission of the patent holder for 20 years. This is how breeder may receive compensation for their new creations.

Greedy plant breeder are trying to extend their legal 20 year exclusivisity by trademarking names. They are trying to scare others from marketing a plant with its common name.

If appears that David Austin is no longer trademarking rose names. On the Austin website, only the name that I saw trademarked was David Austin, which is valid because it indicates the producer of the rose and not the name of a specific rose. Now if only other breeders will follow suit.

I'm confused about trademarks. I just assumed, and had read that if a name was trademarked it was illegal to use it when selling that plant. I had the impression that it is illegal to use Abraham Darby but it is ok to use AUScot. Not true?

Here is an article by Tony Avent of Plant Delights nursery. He admits that the more you look into this issue the more confusing it gets. Great. I'm still confused.

https://www.plantdelights.com/blogs/articles/name-that-plant?stale-link

I don't THINK that just because DA Roses quit putting trademark info in their catalog that they quit having trademarked plants. I could be wrong. Maybe the plant industry has had some kind of lawyerly reckoning and the use of trademarks has been found to be not what they thought it was. ?

My husband says he thinks whatever the law says that DA Roses aught to be able to keep exclusive use of their name if they want to.

I guess one big problem is when people who sell plants rename the plant something off the wall rather than using the code name, such as AUScot. Using the AUS name insures that there are not ten different made up names out there for the same plant.