Australia’s turf doyen Peter McMaugh highlights the important differences between a turfgrass ‘variety’ and a ‘trademark’ to help turf managers sort fact from fiction about the grasses they choose.
I have previously mentioned the need for everyone involved in turf to fully understand the difference between a plant variety name and a trademark. It is obvious from the feedback that I have received that this is poorly understood by far too many people working with turfgrasses.
In order to understand it fully you need to go back some basic steps. Grasses, like all other plants, are classified (given names) in what is called the Linnaean classification system. This assigns a series of names from a broad start down to an individual plant. It goes from distinguishing it from all the dicotyledons (two seed leaves) to a monocotyledon (one seed leaf), then goes into a grass family hierarchy of taxa (groups) as follows;
Sub Family Eragrostoideae (1 of 5)
Tribe Chlorideae (10/7)
Species dactyl on
Sub Family Pooideae
These two examples show how we come down to identifying a species grass type. This is done through various characteristics of the morphology (structural elements) of the grass, but is generally centred around the characteristics of the seed head (flower) .
When we get down to the species, it is defined by its ability to sexually reproduce and produce viable offspring which can in turn reproduce sexually. Most grasses are obligate cross breeders. That is, while they have both male and female organs on the same plant, these do not usually cooperate with one another but only with the gametes (pollen or ovule) of another plant. This gives wide genetic diversity which is then expressed in the appearance of the offspring (phenotype).
When plant breeders are trying to improve crops, especially seed crops, they will select their parent lines for very explicit characteristics and try to create ‘super’ lines expressing these characteristics. They may create say up to six selected genetically.
These in genetic speak are called F1 ‘s (no, we are not talking aeroplanes). By crossing these F1 ‘s they create F2’s from which they will select further progeny for crossing.
These lines will then, maybe, be back-crossed onto the F1 parent to increase the strength of the character selected for, but sometimes this inbreeding process will weaken the plant overall. If a breeder wants to overcome this bottleneck, they will take a similar but genetically different genetic line and cross it with their original line.
This often produces an explosion in vigour and is called intraspecific hybridisation (i.e.: within species hybrids with hybrid vigour).
There is no system in Australia which offers objective varietal performance data the way that NTEP does in the USA. This is a worry
This must not be confused with the crossing of differing species. This can occur naturally within some genera, as is the case with a cross such as Tifway which is a naturally occurring hybrid between Cynodon dactylon and Cynodon transvaalensis.
This is an interspecific hybrid and the progeny is described as C. dactylon x transvaalensis. This is an outside the species cross and is normally sterile.
This sterility is caused by the fact that the two species involved have different chromosome numbers. C. transvaalensis is a diploid (i.e.: it has a x2 set of the basic chromosome number of nine for the genera). This numbering is called the haploid or basic number.
C. dactylon has a x4 set of nine. This gives the cross a x3 set which when cell division tries to line them upon the mitotic spindle strands, they don’t fit and so there is no gamete produced that is viable.
I have deliberately gone through this rather tedious exercise to illustrate a few things;
• I have often heard turfies calling Wintergreen and Windsorgreen ‘hybrid’ couchgrasses. They are not in any way a hybrid any more than Grand Prix or any other straight Cynodon dactylon.
• Not every grass with the ‘Tif’ prefix is a hybrid. The most familiar ones – Tifgreen, Tifway, TifEagle and Tiftuf – are true interspecific hybrids. That is, they are C. dactylon x transvaalensis, with a x3 chromosome set of 27 (i.e.: one of 18 and one of nine from their respective parents).
• When a grass is released by its breeders it is in the current climate more usually than not patented in some way or other. In this process the plant variety name by which it is officially recognised is established.
Here’s an example. Some years ago the Tifton research station patented a new triploid variety as DT-1. The initials were an important guide to their claims in the patent. DT stood for ‘drought tolerant’. So the only correct variety name for this grass is DT-1 . Also registered as a trademark, quite separate from the grass itself, is the brand name ‘Tiftuf’, under which DT-1 is sold commercially. This is not the variety name but the commercial identity for marketing. This trademark is not limited to DT-1.
Other grasses could be released using it or a variant of it.
These are the facts which are established by the way the owners use the patent system. While it is important to realise that in the USA vegetatively reproduced plants are not covered by PBR (Plant Breeder’s Rights), as they are here and in Europe, the USA has a separate plant patent system (PP) for these.
The end result commercially is the same.
All plant patents, whether PBR or PP, have a life of 20 years. That is, after 20 years the owner/breeder of a variety ceases to be able to call the tune on who/where/how it is grown and sold. This is where the commercial importance of the trademark system comes into play.
Trademarks are an intellectual property system involving brands. It is a system which is independent of PBR and is administered in this country along with PBR by IP Australia. Commercially it is the way of extending the sales life of a plant variety at the end of its patent life.
A very good example of this is ‘Sir Walter’ buffalo. When it was put through the PBR system, ‘ Sir Walter’ was given as the variety name. It has no other synonym.
Now ‘Sir Walter’ has been marketed superbly to achieve dominance in the domestic buffalo market. Its owners could not achieve a trademark under that name because the PBR Act specifically states that a plant variety name cannot be used as a trademark and vice versa.
Because of this, to try to capitalise on their already successful market identity, they resorted to obtaining a trademark as ‘Sir Walter DNA Certified’, which they can now use for marketing their version of ‘Sir Walter’. Does this mean that other people growing and selling ‘Sir Walter’ are growing an inferior or different product?
No, they are identical.
Does the trademark carry any guarantee about DNA testing? No. Does the trademark offer a ‘certified’ grass? No.
The trademark office in allowing the trademark makes explicit that the words of the trademark are registered as a ‘whole’ (i.e.; they are just another name).
Thus the thrust of the marketing campaign by the owners becomes one of trust – trust our product more than any other. The obvious impression which is trying to be conveyed is that we have something that the others don’t. And that is right.
They have a different name, not a different product. The essence of the product, the grass, remains the same no matter what you call it or brand it. Thus differentiation becomes a marketing matter not a scientific one.
Another example of this, which has had many years of exposure in the industry, is the so-called couchgrass ‘variety’ Legend. Legend is not a variety name. It is a trademark. The correct variety name is that given to it by the breeder, in this case ‘C1 ‘.
This grass, C1 , is a public domain variety, never having been put through the PBR system, even though it could have been. Its owners decided not to pursue that option.
The practical legal impact of this is that anyone who wishes can grow and sell C1 provided they don’t call it ‘Legend’. Another practical difficulty today is that if you wanted to go down that path you would be flat out finding pure strain nursery stock.
Another practical implication is that all those tender documents which over many years have specified the couch grass variety ‘Legend’ are wrong in fact, and leave some rather large open questions for the lawyers to argue over.
Yet another important practical implication is that you can have ‘Legend’ supplied legally validly as pure strain Legend or contaminated Legend. Both fit the legal obligations of the Trademarks Act as far as I can see.
Maybe the lawyers beg to differ, but they haven’t as yet won a dispute in this area.
The problem with the law is there are many facets to arguments of this kind and the obviously simple ones to you and me don’t always win. Where lawyers are concerned steer clear of them unless you have money to burn.
The marketing of ‘Legend’, like Sir Walter, has been a very successful exercise and I have no doubt that most of you will continue to call it Legend and not C1.
SORTING FACT FROM FICTION
I hope that this wade through history has made it a lot clearer as to the differences between a ‘trademark’ and a ‘variety’ and help you to sort fact from fiction about the grasses you purchase.
As a final word or two, no matter how fancy your market names or trademarks are, nor how distinctive your new variety is, these have absolutely no impact whatsoever on performance or suitability of purpose on their own. These are only useful in an identity crisis.
Where they are important is in sorting out whether you are getting a pure strain grass or a contaminated one.
Ninety percent of the time this is an aesthetic argument about the visual look of the product. However, there is a very important side of choosing the right variety as fit for purpose and this is the defining description of what quality implies.
True quality performance has nothing to do with varietal name or trademark other than that if historically this variety sold under that trademark is ordered by you as a matter of trust in their historical performance, then you want a guarantee that that is the quality you are getting.
That is where ‘certification’ comes in. In general, while the scientist wants certainty about the genetic package he is talking about in his research paper, and that is given by the correct variety name, the practitioner wants quite a different certainty from that variety and that is fitness for purpose.
This is where getting the facts about varietal performance is so important. There is no system in Australia which offers this objective data the way that NTEP does in the USA. This is a worry .