32A. Annex 3 - Applicable Sections of the ICNCP

International Code of Nomenclature for Cultivated Plants
8th Ed., 2009:

Divisions I: Principles

Principle 4

Names of plants governed by this Code must be universally and freely available for use by any person to denote a taxon.

Principle 6

The practice of applying trade designations as marketing devices in addition to properly established names of taxa of plants is not supported by this Code; such designations are not to be recognized as being names regulated under this Code.

Plants are sometimes marketed using trademarks. Such trademarks are the intellectual property of a person or corporate body and are not therefore freely available for any person to use; consequently, they cannot be considered as names regulated under this Code.

Article 13: Trade Designations

13.1 A trade designation is not a name regulated under this Code but is a device that has been used for marketing a cultivar, Group or grex in place of its accepted name.

Ex. 1. In 1988, UK Plant Breeders' Rights Grant No 3743 was issued for a rose with the cultivar epithet ‘Korlanum’. The cultivar is marketed as “rose Surrey”, “Rose Sommerwind”, and “rose Vent d’Été” in different countries. These are not names but are to be regarded as being trade designations and may be written rose SURREY (‘Korlanum’), Rose SOMMERWIND (‘Korlanum’), and rose VENT D’ÉTÉ (‘Korlanum’) respectively.

Ex. 2. The name Syringa vulgaris ‘Andenken an Ludwig Späth’ was established in 1883 and under the Rules of this Code is the accepted name for the cultivar. Due to prolonged use of the shortened form “Ludwig Spaeth” by North American nurserymen, the International Cultivar Registration Authority for lilacs has designated S. vulgaris LUDWIG SPAETH as being a trade designation for the cultivar.

Ex. 3. ATTENTION! oak is not a cultivar name; however, it contains a US registered trademark (Reg. No 1508479) originally owned by Willet N. Wandell and is used as a trade designation to market Quercus robur ‘Wandell’ which name was itself established in 1989 on grant to Mr Wandell of US Plant Patent No 6746.

13.2  A trade designation is not to be confused with a synonym. For the purposes of this Code a synonym is an established name (Art. 10.1) that is not the accepted name (Art. 11.1).

Article 17: Trade Designation Status

17.1 Trade designations may not be placed within demarcating quotation marks.

17.2 If cited, trade designations must always be accompanied by their accepted names.

17.3 If cited, trade designations must always be distinguished typographically from cultivar, Group and grex epithets.

APPENDIX X
TRADE DESIGNATIONS

(a)   In distinguishing a trade designation typographically from an accepted name the trade designation may, for example, be placed in capitals e.g. Dianthus FANTASIA is the trade designation for the cultivar with the accepted name Dianthus 'Londaison'. The use of any other typographical device to make this distinction should avoid anything that might cause confusion with indications of cultivar, Group or grex status, so for example the use of single or double quotes is not recommended.

(b)   When citing a trade designation together with an accepted name, whilst it is preferable to list the accepted name first, the order in which they are quoted may depend on the circumstances; it is recognized that users of a name may be more familiar with the trade designation. Thus Dianthus 'Londaison' FANTASIA or Dianthus FANTASIA 'Londaison' can both be used. Placing the second element within brackets is another accepted style of presentation e.g. Dianthus 'Londaison' (FANTASIA) or Dianthus FANTASIA ('Londaison').

(g)   In some circumstances it may be necessary to record the use of the same word or words both as a synonym and as a trade designation for the same plant. This may occur when a name has been established prior to the plant being granted statutory rights (e.g. Plant Breeders' Rights) and when a different name has been used for the same plant in the grant of rights. The latter has to become the accepted name of the plant and the earlier established name a synonym. However, if the synonym is then taken up as a marketing device for that plant it should then to be treated as a trade designation. This treatment applies even if the earlier established name has been registered by an ICRA. Another example is given under Art. 13.2.

(h)   Some trade designations may consist of or contain registered trademarks. A registered trademark is one that has been formally accepted by a statutory trademark authority and is usually distinguished by the international symbol ®. The use of this symbol is not compulsory. Registered trademarks are the intellectual property of a person or some corporate body and are therefore not freely available for any person to use; consequently they cannot be considered as or as part of names.

(i)   Most trademarks are applicable over a restricted class of goods, so thus a trademark registered for use in a class covering machines and machine tools may still be acceptable for use as part of a plant name.

Art. 8. Note 2 Anyone using a trademark for a cultivar should be aware of the risk of the trademark becoming generic unless an accepted name is also given when marketing the cultivar. The trademark should always be accompanied by an accepted name.  

[emphasis added]