Charges of intellectual-property theft blossom—in the flower biz
A German breeder says a U.S. distributor stole its bloom “People are not gardening the way they used to”
The flower industry is about beauty and fragrance. It’s also filled with intellectual-property theft, backbiting, and deceit. That’s what German plant breeder Westhoff Vertriebsgesellschaft claims it has suffered at the hands of a U.S. flower breeder and marketer in a recent trademark and patent infringement lawsuit.
Westhoff developed a flower called Candy Bouquet, a magenta-and-yellow variety that looks like a small petunia. In a lawsuit filed on May 4 in federal district court in Pittsburgh, Westhoff claims California-based distributor
Proven Winners copied the variety, then interfered with Westhoff’s sales efforts, derailing a deal to sell the flower to Home Depot, the world’s largest home-improvement chain. In the process, Westhoff alleges that Proven Winners maligned the German breeder’s reputation.
Candy Bouquet is a variety of the South American plant called calibrachoa, informally known as “million bells” or “little petunia” because of its resemblance to the better-known annual. The plant is gaining in popularity, with $44.6 million in sales in 2014 in the U.S. for calibrachoa, compared with $29 million in 2009, according to U.S. Department of Agriculture figures. The flowers are considered easy to grow, come in a variety of colors, and produce blooms from spring to fall.
Flowers and other plants that appear in nature can’t be patented. Instead, companies develop varieties through grafting or budding and obtain patents under the 1930 Plant Patent Act for ones that produce asexually, without seeds. More than 375 patents have been issued for calibrachoa varieties, according to data compiled by Bloomberg. Westhoff has 28 of those, including the “Wescacandy” patent for Candy Bouquet issued last December. After unveiling Candy Bouquet at Home Depot’s vendor show in February 2014, Westhoff claims the retailer’s reps expressed interest in being the exclusive seller of the flower in North America. According to the complaint, Westhoff says Proven Winners, having seen the flower at the same trade show, tried to trademark the name Candy Bouquet. The application,
filed in September 2014, was initially rejected and then abandoned, according to U.S. Patent and Trademark Office documents. Then, the lawsuit claims, Proven Winners developed its own variety, Holy Moly, working with a U.S. breeder named Plant21, and told several growers and Home Depot that Westhoff ’s version was a knockoff. Proven Winners threatened to “take action” against anyone growing Candy Bouquet, the lawsuit says, cutting off potential suppliers.
Westhoff seeks compensation for the alleged patent and trademark infringement, as well as unspecified damages for the lost business. It’s also asking for a court order to stop Proven Winners from further infringing its patent and making false statements about Candy Bouquet.
Proven Winners was started two decades ago by three growers who wanted to create a national brand name for plants. Through Executive Director Mark Broxon, the company declined to comment on the lawsuit. Home Depot, which is not a party to the lawsuit, also declined to comment.
Home Depot and its rivals have become increasingly important to the garden supply industry’s breeders, growers, and distributors. The big-box retailers have squeezed out mom and pop garden stores, and there’s been consolidation among distributors and breeders as well. Annuals such as the calibrachoa, petunia, and begonia are the moneymakers for garden sales, although growth has started to slow in recent years, says Marvin Miller, market-research manager of Ball Horticultural in West Chicago, Ill., a global gardening company not involved in the lawsuit. With fewer, bigger companies and slower sales, there could be more flower fights. “People are not gardening the way they used to,” Miller says. “The players realize that when they want to grow, they have to do it at the expense of a competitor.”
The bottom line Consolidation in the garden industry could lead to more legal disputes over the rights to flower variety patents.