REFUSAL – APPLIED-FOR MARK IS A CULTIVAR NAME Registration is refused because the applied-for mark is a cultivar name for the identified goods and as such, does not function as a trademark to indicate the source of applicant’s goods and to identify and distinguish them from others. Trademark Act Sections 1, 2, and 45, 15 U.S.C. §§1051-1052, 1127; see TMEP §1202.12.
The Universtiy of Minnesota claimed they had a trademark on the varietal name ‘Honeycrisp’ for over 20 years when no such trademark ever existed. Plant varietal names are inherently generic and thus can’t function as a trademark.
“Though UM will lose control of Honeycrisp propagation, it won’t lose control of the Honeycrisp name. The trademark and the patent are distinct, and the university still owns the trademark‘’ (Bedford)
The U. S. Court of Appeals for the Federal Circuit, in affirming the Trademark Trial and Appeal Board’s (the Board) refusal to register the mark “Rebel” for grass seed, agreed that the mark is a generic designation for such seed. In re Pennington Seed, Inc., Case No. 06-1133 (Fed. Cir., Oct. 19, 2006) (Judge Lourie).
‘Rebel’ is a generic name and cannot be registered as a trademark.
“Because we hold as a matter of law that plant varietal names are generic and substantial evidence supports the Board’s finding that “Rebel” is a varietal name, the decision of the Board is affirmed. “