I kinda went through the process as if I was gonna import roses from Japan following the links...and ended up at the link above..I was having trouble getting the link saved to houzz lol so finally got it posted. It kept trying to say error on houzz when I was posting..anyhoo I gather there is a definite quarantine period for roses, inspections, etc

If they imported legally there would definitely be a paper trail.

Also we dont know if the roses were imported dormant (no leaves and no soil) with roots OR as cuttings, OR as cut flowers (which they could illegally root) I say, illegally because you have to declare if you are importing plants for growing or propagation OR as just cut flowers etc. You cant just import cut flowers when root them and propagate them for sale without going through proper channels and growing them in a approved quarantine area (as far as I know unless there's some loophole) Lots of hoops to jump through lol.

Check out "Plant Breeders Rights" which Wikipedia covers extensively. These rights often overlap with patent rights, so that there are limits on what a plant pirate can legally do, one of which is exportation of the plant, which a breeder has asserted his/her rights over. There is a lot more to plant breeders' rights than what is mentioned just above by Valrose. It's involved. Diane

sultry_jasmine_nights (Florida-9a-ish) , You are in Trade Category, if you imported less than 13 plants you need to read instructions under Travelers. I bet this is how Japanese Roses came to US.

elena,I havent imported anything lol..just went through the site as if I was going to in order to see what was needed. Thanks for the traveler link!..I will check that out..

Ok here's that link.. I am unclear if this means you can go ahead and grow and propagate and sell it to the general public..

https://aphis.prod.usda.gov/es/node/2215

Sultry, there are several aspects discussed in two topics. My main point here is that it's legal for a traveler to bring up to 12 plants. However, for the next steps of propagating and selling, there are other rules and laws in place that I'm not very familiar with, so I can't comment on them.

It says includes nursery stock. So I wonder if that means they have to be a licensed nursery for it to be considered 'nursery stock'. So back to: --->Are they a legitimate licensed nursery? I wonder why not just be transparent about it all lol.

All this stuff is clear as mud to me so I think I'd be calling them if I was to truly try and import something.

Diane Brakefield As far I know roses varieties are that covered by plant patents are as simple as I described. Plant patents protect a plant from asexual reproduction without permission from the patent holder.

Plant Breeder Rights as describe in Wikipedia is something different and as far as I know, has not been granted to a rose variety. It is primarily used for plants that are propagated by tuber or seed.

I am just going to say this right up front - I think purchasing roses from these questionable sellers is appalling, and if that makes me judgmental and self-righteous. I'll own that label proudly.

Why would you want to buy roses from someone who is not absolutely transparent about their business practices, including their business address, their business license, their nursery license/legal water rights, any USDA shipping limitations and where their roses are obtained? These shady sellers are getting $60-70-80 per plant and customers are lining up to buy them, which is crazy. The risk of a low-quality plant or a patent violation is just a small piece of the problem - the threat of pests and disease is what especially scares me. The whole thing turns my stomach; forget about the roses, I start to fear for the future of agriculture and our food supply.

And not to be rude, but I'm never going to be trading cuttings with someone who knowingly invites such roses into their gardens. Way too risky.

It is legal for a traveler to bring in up to 12 plants of certain, allowable plants. If you dig deeper, you will find there are still restrictions on roses.

https://acir.aphis.usda.gov/s/acir-document-detail?rowId=a0jt000001ACERvAAP&Document_Type=Commodity%20Import%20Requirements

There are 2 types of regultions for less than 13 roses and for more than 13. Your link applied to more than 13 roses.

When I contacted Tantau in order to bring few roses from oversees, they explained me that their roses might not pass the border due to the grafted area size.

Nope.

That's where you end up if you look into any special restrictions concerning roses.

I do not see it from here: https://www.aphis.usda.gov/traveling-with-ag-products/plants-plant-parts

and not in position to dig deeper into this. Based on your interpretation of this regulations, Etsy roses are legally brought in USA.

@elenazone6 you seem to be driving many of the pro-Etsy thread topics here. Have you read the full complaint by plaintiff David Austin Roses, defendant JessiesRoses?

Here is a part directly from the court documents, for those who are interested;

26. For example, on information and belief, the roses sold by JessiesRoseUSA under the CAPABILITY® mark are of the variety ‘Ausapply’, protected by U.S. Patent No. PP29958; the roses sold by JessiesRoseUSA under the KEIRA® mark are of the variety 'Ausboxer’, protected by U.S. Patent No. PP22947; and the roses sold by JessiesRoseUSA under the CONSTANCE® mark are of the variety ‘Austruss’, protected by U.S. Patent No. PP26676, as shown in the screenshots attached as Exhibits V-Z. 27. These varieties are from David Austin’s wedding collection, which are not commercially available as a plant, and therefore, could not have been obtained from any authorized source. 28. On information and belief, Defendants had actual or constructive knowledge of the David Austin Patents and the infringement of these patent rights was willful. 29. The product descriptions on Defendants’ Etsy shop and website contain text and images copied directly from David Austin’s own catalog and website.

That is just one of many trademark infringements DA is claiming in the case.

Yikkes!!

DA is/was suing a lot of roses vendors, for example Jackson and Perkins: https://www.govinfo.gov/app/details/USCOURTS-ord-1_09-cv-03027

Burden of proof is always on patent holder side.

I was intrigued, so did a quick search, and this popped up: https://www.pacermonitor.com/public/case/53063554/David_Austin_Roses_Limited_v_GCM_Ranch_LLC_et_al

I can't read the actual complaint unless I pay for the service, but you can see that DA is going after the Etsy sellers, as this one is GCM Ranch.

Whoo eee! Perhaps it's the end of an era when it comes to selling patented roses for inflated prices on Etsy. It's about time!

Deborah,

That’s interesting, GcmRanch doesn’t explicit name Austin varieties, just ’Pink White Wedding Rose’ with pictures that look very much like Constance. I wonder how DA will prove it’s their patented rose, are they actually going to purchase the plant and do genetic testing?

BenT, I've been spending quite a bit of time looking at various Etsy listings, and they will either bury the DA name deep in the description or list it in another language. I've been using a google translator, and the names pop right up. It's like they are trying to hide it, but not very well.

Ben, DA is using in their cases clause ’on information and belief’ in my opinion is not easy to proof.

I work in tech where parent lawsuits are basically weapons of mass destruction. My Fortune 100 company’s legal team and I work closely as it’s one of my areas of expertise. These cases largely rely on chain of custody and preponderance of evidence. Like this:

You marketed these plants as DA wedding roses. Were you lying, and fraudulently sold these roses as DA roses when they are not, or are they indeed DA wedding roses?
DA florist roses are not for sale to the general public. We have no record of you receiving these roses legally. Show us how you obtained these roses. (they won’t be able to).

Having proven they have no chain of custody, DA will claim they acted willfully maliciously in selling these roses to others. They either obtained them illegally and illegally propagated them, or they propagated them without knowing they were wedding roses in which case they are guilty of fraud (hint never cop to fraud when the US Mail Service is involved!).

Having proven they acted willfully and maliciously in illegally propagating trademarked roses they will then introduce a preponderance of evidence showing their guilt.

• The defendants used trademarked names in violation of trademark laws.
• The defendants used copyrighted photos right from DA’s own web site in violation of copyright laws.
• The defendants were given a cease and desist order and continued unlawful activity (which DA stated they were notified in the complaint)
• The defendants were unable to provide other information regarding their business such as business address and partners in the LLC (common practice for request such information and in the case of JessiesRoses they did not comply).

Also, very interesting in the Jesse Roses case that when the defendants were notified via cease and desist, they replied to David Austin without seeking legal counsel meaning they probably put lots of things in their reply to DA that hung them out to dry. The complaint specifically calls out response as further evidence of their willful ignorance so I am guessing they already told DA these are DA roses.

With this preponderance of evidence they’ll probably ask for summary judgement—what’s the counter argument, we were selling fraudulent roses instead of copyrighted ones?

Wow, that's interesting, Ryan, thank you. Because it involves patent, trademark and copyright, does this seem like it might be a particularly egregious case? And I noticed they didn't ask for an amount in their complaint (other than value of the product sold and atty fees), is that typical in a patent lawsuit like this?

Interesting recent development, as i have wondered how these sellers bluntly sell roses under patent ptotection. I think it is easy to prove there is patent infringement and copyright /trademark violation on DA roses, but i assurm they can continue to sell other roses from Europe and Asia if the rose doesn’t have active US patent?

Actually, Elf Rosa, they asked for this:

That the Court issue an Order directing Defendants to file with the Court and serve on Plaintiff a full and complete accounting of all monies received by Defendants as a result of the sale of products protected by the David Austin Patents and/or the David Austin Trademarks. g) That in accordance with 15 U.S.C. §§ 1114 and 1117, Plaintiff be awarded monetary damages sufficient to recover Defendants’ improper profits, and all damages suffered by Plaintiff, including a trebling of damages and an award of attorneys’ fees and costs due to the exceptional nature of this case. h) For such other and further relief as the Court may deem just and proper.

I don't know if this link will work, but you can see the court paperwork here: https://insight.rpxcorp.com/litigation/azdce-1364353-david-austin-roses-v-jessie-s-nursery#overview

@desertsilver there is no specific monetary demand, which I find curious.

They are asking the Court to calculate monetary damages most likely because they want to find out how many sales included the patented DA roses. Should the court find judgement for the Plaintiff, they will have to subpoena the financial information to calculate damages…which will undoubtedly yield more information.

If you see a patented variety on Etsy for Austin, then email:

leads AT davidaustinroses DOT co DOT uk

As for others, I am not as sure where to send info. Etsy and Amazon are littered with fake rose seeds that don't exist so I doubt they care. Only rose companies do. As for the morals, I find the patent system deeply flawed and biased towards coorperations. In most cases, the cost, skill, and time to patent a rose far outweighs the benefit. With that said, its all we have right now.

That makes sense, I didn't think of it in those terms. Thank you again, Ryan, for all the interesting information!

Elf Rosa they want the copyright and trademark infringement as part of the complaint to support the patent infringement claims. They marketed and sold these roses as patented DA varieties. They can’t claim ignorance and say they’re random unpatented varieties because they used trademarked and copyrighted materials that said to the contrary. So rather they committed fraud and sold people roses they knew were not DA roses but used copyrighted photos and trademarked names in doing so, or they illegally propagated and profited from selling roses they can’t even legally own nor propagate. As one might say, dammed if you do….

What these sellers did seems really brazen, and as you explain it, it seems like it would be a very difficult lawsuit to defend, they are sort of trapped in all directions. What about the customers who bought these roses - is it possible that they could be subpoenaed if these cases move to trial, or even face some legal ramifications of their own? Does something like that ever happen in these types of cases? I guess I'd be feeling nervous if I had any of these roses in my hands.

Ryan, it sounds like you really know your way around patent law. As a former 3 D artist, I was told that if our company did not go after those using our patented game files ( once we were aware that it was being done) we would then lose the patent. Is that true for roses also? If so, DA would have no choice but to go after those stealing their patented plant material.

Fire zone, for the Etsy sellers it seems to have started in the past month or so, for the last three sellers it was filed just this week. Also, the complaints can be found online and it's not just patent infringement but also copyright and trademark. Ryan's comments in this thread are really helpful to understand the details.

Patents are not lost. Once granted they are yours until they expire. However trademarks must be protected because they do not expire. As long as they are used to uniquely identify a good or service in commerce, they can be uniquely registered to you, but if you let others use it can be considered abandoned.

It's good that David Austin Roses is sueing these people, but I feel really bad for the Japanese/Chinese(?) breeders who are either unaware that they are being robbed or else can't afford to sue.

I‘ve been soing some research and it seems a company needs to file their patent/tademark/copyright in each country where they want protection. I would imagine that with roses only companies that distribute to the US will take the time and resources to do so. David Austin does have their roses patented and trademarked here along with copyrights on their images so they have legal ground to sue.

I tried looking up patent information for some of the Japanese and GRF exclusive roses but didn’t find anything. However, without the registration name its hard to be sure I didn't just miss them in my search.

There are still legal question on how the roses got into the country and whether they are being subjected to the correct agriculture inspections - maybe someone that has ordered from these companies can provide input there.

Even if it’s entirely legal to distribute roses not patented in the US I’m not comfortable with a company that also breaks patent laws. At best it shows ignorance and lack of care and at worst it is a purposeful attempt to get money illegally.

I was told that once a rose has been in commerce for a year, it is no longer possible to get a US patent for that variety. Moreover, a specific US patent is required for a rose to be protected in the US, no other sort of patent will suffice. The example provided to me was Veteran’s Honor , one of J&P’s most successful roses. Ludwigs had sold it for a year before J&P tried and failed to get a patent for the variety. (If you look up the Veterans Honor on HMF, you will see ’patent application withdrawn’, highly unusual for a best-selling rose from a big company). This was told to me by a very well known and respected rose professional.

I have a question about the older varieties where the patent has expired but the name is still trademarked. I've seen with the DA roses people will use the registration name instead of the trademarked name on these older varieties, but on other roses (like Meilland's Eden for example) they won't use the registration name, they'll use the trademark name. Why is that? Is DA just fussy about people using the trademarked name but other companies aren't?

That is an interesting question, Elestrial - it might be because Eden is a common rose name and the trademarked name is actually Eden Climber or Eden Rose 85, it's just now by far the most famous of the Edens so no other name details are needed. I personally prefer the registration name MEIviolin (probably my favorite of any registration names!) or Pierre de Ronsard. But Eden is easier to write on the tag :-)

Ah, okay - that makes sense. Thank you

David Austin threatens with litigation to scare nurseries into not using trademarked names on out of patent roses. Trademarks on variety names would probably not stand in a court of law but nurseries don't have the money or time to find out.

Trademarks were created be used for "branding" so you'd know the source of a product like a growers company name. Not for naming so you would know what to call a product.

How come we don't hear about the other rose companies threatening litigation over the use of their trademark names? I only ever hear about DA doing it.

@Elestrial it's happened, it's just not usually so public. IMO the brazen activities of some of these sellers require a public smackdown like this seems to be.

Probably won't stand up in court. Breeders get 20 years exclusive rights to sell their creation. Government's way of rewarding new creations. By trademarks names companies try to extend that by making it harder to sell off patent roses by making growers afraid of using their original names. If a item is commonly known by only one name then the name becomes generic and the trademark is void. In the very few times cases were litigated, courts ruled against the enforcement of trademark names for plants.

Here's a link to an article explaining this

https://www.ac-legal.com/a-rose-by-any-other-name-but-likely-not-a-trademark/

Now selling patented plants without permission, that's a crime.

DA is considered the Premier English Rose Brand in the UK. They also are the most expensive rose brand in the UK. Just some thought from a different perspective. You can get roses called Fryer Roses in the Uk - Peter Beales, and probably a couple other brands, but quite honestly I own about 3 roses I've bought from Peter Beales, one from Fryeres, the rest are all DA, Retired DA, or some form of something I've gotten from a third party breeder such as C&K Jones, Trevor White, or Eastcroft

Thank you, that makes sense

@TheGableGarden - is Harkness not a major contributor to UK roses?

Fryers has made amazing contributions.

Patent offenses are not a crime ie. criminal offense. They are a civil offense. It can become a crime if they do not follow the federal courts in civil matters once a matter is entered into the system. AKA Don't p*** off the judge.

This needs clarity because calling someone criminal should be meaningful. It is also important because when something becomes a criminal matter, it is much more difficult to gain back any financial losses from the patent infringement. AKA It's hard to squeeze money out of a stone. Court ordered payments are much preferred in the business world $_$

"These sellers are all illegitimte." Our fellow forum member, seasiderooftop took action ; you have to go to find her/his post on the "Etsy roses we can trust" thread in order to view Wabara's reply (I couldn't cut-and-paste it here, but here is seaside's post (from 11 days ago), and a link to the thread.

https://www.houzz.com/discussions/6421437/etsy-roses-sellers-we-can-trust#n=250

From seasiderooftop:

"Dear all,

I am going to post this here and in the other thread so everything is clear for everyone.

I reached out to WABARA (Keiji roses).

I copy pasted the list of sellers that appears in the "Etsy rose sellers we can trust" thread and asked Wabara if any of these are authorized resellers paying their royalties .

Below is the reply from Wabara.

I could not find an email address for Kawamoto , so I sent them an actual letter. I suspect their reply will be the same.

The controversy should never have existed, since it is easy to find out the truth. These sellers are all illegitimate. If you want to continue in spite of this information, that's on you.

The good news is that there may soon be a legit way to get Wabara roses."