The Patent on the ‘Swan Hill’ variety of olive ended in 1989. Swan Hill Nurseries has been falsely claiming ownership of the ‘Swan Hill’ varietal name. Olea europaea ‘Swan Hill’ is the official botanical name of the Swan Hill Olive and can not function as a trademark under U.S. federal law.
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. “