Plant Breeders Rights?

V

Vertically Challenged

I wonder what the position is on me starting 60 Carolina Reapers growing them up, then selling clones and seeds I make from the reapers I would grow everything indoors under lighting ina sealed environment to eliminate cross contamination.
 
Are they're any legal hoops I have to jump through.
 
This isn't my core business it's just a bit of fun to hopefully make the indoor grows self funding, also means I can get more tents and lights :)
 
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Vertically Challenged said:
I wonder what the position is on me starting 60 Carolina Reapers growing them up, then selling clones and seeds I make from the reapers I would grow everything indoors under lighting ina sealed environment to eliminate cross contamination.
 
Are they're any legal hoops I have to jump through.
 
This isn't my core business it's just a bit of fun to hopefully make the indoor grows self funding, also means I can get more tents and lights :)
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There are two US trademarks as of the time of drafting of this post:
Serial Number Reg. Number Word Mark Check Status Live/Dead
1 85930781 4436594 SMOKIN' ED'S CAROLINA REAPER TSDR LIVE
2 85846060 4428181 SMOKIN ED'S CAROLINA REAPER TSDR LIVE
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A UK trademark search for Carolina Reaper yielded zero results. It is not in the US Plant Variety Protection database.
 
TNKS said:
Just call them Reaper's same as others already do when selling that strain outside of Puckerbutt Pepper Company*
"Carolina Reaper" is trademarked
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There should be no need to shorten the name further to just Reaper given the following disclaimer listed against the two marks:
Disclaimer NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE "CAROLINA REAPER" APART FROM THE MARK AS SHOWN
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True,there should be no need to shorten the name outside the US
Being respectful is a measure of integrity after all,regardless of how big a d**k Ed Currie is off camera.
Try it and see if he comes after you,Im sure he will
 
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Scoville DeVille said:
*cross pollination*
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Surely I would need to add a different strain to my sealed hps grow room to get cross pollination? I'm going to grow these out now in our winter under HPS/MH in a sealed room with filters on intake and out take indoors. I will also not grow any other type of chillies on site to eliminate the risk of cross pollination to close to zero far beyond what a conventional greenhouse in summer could possibly offer.
 
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TNKS said:
Just call them Reaper's same as others already do when selling that strain outside of Puckerbutt Pepper Company*
"Carolina Reaper" is trademarked
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Actually, it isn't trademarked. The varietal name of a plant can not be trademarked in the US. The trademark is on "SMOKIN ED'S CAROLINA REAPER" and it actually says in the trademark database "Disclaimer NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE "CAROLINA REAPER" APART FROM THE MARK AS SHOWN", so there is no barrier to calling them "Carolina Reaper."
 
Part of the trademark database seems to be down right now, so I can't get to the document where they had to disavow any claim to "Carolina Reaper" to get the trademark. But I've read it before. The trademark office specifically required the lawyer to say that for the trademark to "Smokin Ed's Carolina Reaper" to be issued. The trademark office's reason, "Carolina Reaper" is the varietal name of a plant and varietal names of plants can not be trademarked.
 
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TNKS said:
So exploit it then, feed off of some one elses effort and labors.
Karma is a bitch!
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I do not understand this post.  Is your aim to judge and warn Orekoc and others of the danger of using 'Carolina Reaper' because it is your belief that Ed Currie will or should sue them?  Do you yourself have such experience?  The patent includes the disclaimer, so use of the varietal name is legal.  Vendors on this very site use 'carolina reaper' when selling seeds/pods.  You can trademark 'Chakita Banana' but you cannot trademark 'banana' you know what I mean?  Overall your post reads like 'say your prayers or you'll go to hell', which is kind of condescending if is indeed true.  Is that how you meant your post to read TNKS?  
 
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TNKS said:
So exploit it then, feed off of some one elses effort and labors.
Karma is a bitch!
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I'm really not sure what you are trying to say here. If Ed wanted to protect his effort and labor, the proper way to do that was with a plant variety patent (PVP) which would have given him 18 years of protection. Meaning anyone selling the seeds would have had to pay him a royalty. He chose not to do that. Why do you have a problem with his decision? Why do you seem so angry with others using what he chose not to protect?
 
SmokenFire said:
 
I do not understand this post.  Is your aim to judge and warn Orekoc and others of the danger of using 'Carolina Reaper' because it is your belief that Ed Currie will or should sue them?  Do you yourself have such experience?  The patent includes the disclaimer, so use of the varietal name is legal.  Vendors on this very site use 'carolina reaper' when selling seeds/pods.  You can trademark 'Chakita Banana' but you cannot trademark 'banana' you know what I mean?  Overall your post reads like 'say your prayers or you'll go to hell', which is kind of condescending if is indeed true.  Is that how you meant your post to read TNKS?  
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Thanks Smoken, one little point, it is a trademark, not a patent. Trademarks, patents and copyrights are three different things and are not interchangeable. There are different laws governing each of them.
 
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Orekoc said:
Thanks Smoken, one little point, it is a trademark, not a patent. Trademarks, patents and copyrights are three different things and are not interchangeable. There are different laws governing each of them.
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Indeed you are correct Orekoc, thank you for the clarification.
 
TNKS I don't GET IT.  But I DO care to listen if you'd like to explain.  I'm not flaming you here - I'd prefer to understand where you're coming from. 
 
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TNKS said:
Plenty of others here GET IT.
Im not here to raise kids with baseline moral teachings.
ESPECIALLY on a pod strain that is already worldwide.
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I. Uhm. ........................................
 
I don't even know what to say to this.
 
Ah, yes, there are people here and all over the world, getting it as we speak. We agree on that. No problem. I just can't figure out what peoples' sex lives have to do with the Carolina Reaper and its lack of legal protections.
 
Hmmm, usually people want their children to be taught at least a minimum of moral teachings, but I'm not here to argue about child rearing philosophies. I'm just not sure what a pod strain that is already world wide has to do with child rearing and minimum moral teachings, but ok.
 
Yeah. Uhmmmm. I'll just be going now.
 
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So basically I can sell clones, seeds and pods just don't call em carolina reapers unless the pods actually came from the first gen of seeds or clones of the first gen in which case I can call em carolina reapers. Seeds though no no but I'll probably sell the freh pods so I'll never see any seeds anyways.
 
All fun :)
 
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Vertically Challenged said:
So basically I can sell clones, seeds and pods just don't call em carolina reapers unless the pods actually came from the first gen of seeds or clones of the first gen in which case I can call em carolina reapers. Seeds though no no but I'll probably sell the freh pods so I'll never see any seeds anyways.
 
All fun :)
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You can call the seeds "Carolina Reapers", if they are from Carolina Reaper plants. I'm not sure why you think you can't.
 
You can't call them "Smokin Ed's Carolina Reapers," as that is a Registered Trademark.
 
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TNKS said:
Check all the top known vendors world wide.
They call them Reapers for a reason
Wonder what that reason is.......?
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1. I'm not doing your homework for you.
2. I would never speculate about their reasons.
3. Once more with feeling, to get the trademark on "Smokin Ed's Carolina Reaper" they were required by the Trademark Office to disavow any claim to Carolina Reaper. Here is the letter that went to the trademark attorney saying so. It can be found here :
 
http://tsdr.uspto.gov/documentviewer?caseId=sn85930781&docId=OOA20130525063421#docIndex=9&page=1
 
 


UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)​
[SIZE=10pt]OFFICE ACTION ([/SIZE][SIZE=10pt]OFFICIAL LETTER) ABOUT APPLICANT’S TRADEMARK APPLICATION [/SIZE]​
 

[SIZE=11pt]    U.S. APPLICATION SERIAL NO. 85930781[/SIZE]
 
[SIZE=11pt]    MARK: SMOKIN' ED'S CAROLINA REAPER[/SIZE]
 


 
        
[SIZE=28pt]*85930781* [/SIZE]


[SIZE=11pt]    CORRESPONDENT ADDRESS:[/SIZE]
[SIZE=11pt]         redacted by Orekoc[/SIZE]
          


redacted by Orekoc

[SIZE=11pt]    APPLICANT: PBPC, LLC[/SIZE]
 


 
 


[SIZE=11pt]    CORRESPONDENT’S REFERENCE/DOCKET NO:   [/SIZE]
[SIZE=11pt]          061019.00010[/SIZE]
[SIZE=11pt]    CORRESPONDENT E-MAIL ADDRESS[/SIZE][SIZE=11pt]:[/SIZE]
[SIZE=11pt]          ipdocket@h2law.com[/SIZE]


 

 
 
 
[SIZE=14pt]OFFICE ACTION[/SIZE]​
 

[SIZE=14pt]STRICT DEADLINE TO RESPOND TO THIS LETTER[/SIZE]
TO AVOID ABANDONMENT OF APPLICANT’S TRADEMARK APPLICATION, THE USPTO MUST RECEIVE APPLICANT’S COMPLETE RESPONSE TO THIS LETTER WITHIN 6 MONTHS OF THE ISSUE/MAILING DATE BELOW.
 
ISSUE/MAILING DATE: 5/25/2013
 
The referenced application has been reviewed by the assigned trademark examining attorney.  Applicant must respond timely and completely to the issue(s) below.  15 U.S.C. §1062(b); 37 C.F.R. §§2.62(a), 2.65(a); TMEP §§711, 718.03.
 
Search Results
The trademark examining attorney has searched the Office’s database of registered and pending marks and has found no conflicting marks that would bar registration under Trademark Act Section 2(d).  TMEP §704.02; see 15 U.S.C. §1052(d).
 
Disclaimer
Applicant must disclaim the descriptive wording “CAROLINA REAPER” apart from the mark as shown because it merely describes an ingredient, quality, characteristic, function, feature, purpose, or use of applicant’s goods.  See 15 U.S.C. §§1052(e)(1), 1056(a); DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1251, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012) (quoting In re Oppedahl & Larson LLP, 373 F.3d 1171, 1173, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004)); In re Steelbuilding.com, 415 F.3d 1293, 1297, 75 USPQ2d 1420, 1421 (Fed. Cir. 2005); TMEP §§1213, 1213.03(a). 
 
Specifically, the attached evidence from Localharvest.org shows this wording is the varietal name for the goods, making it the generic name for the goods and incapable of registration.
 
Applicant may submit the following standardized format for a disclaimer:
                       
No claim is made to the exclusive right to use “CAROLINA REAPER” apart from the mark as shown.
 
TMEP §1213.08(a)(i); see In re Owatonna Tool Co., 231 USPQ 493 (Comm’r Pats. 1983).
 
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