Hibiscus Etiquette

That's an interesting question, Jordan, and one that has come up from time to time.

Legally, the only way a variety can be protected is for the hybridizer to patent it and that has to be done before it has been in commerce for 1 year. If not patented then any variety can be propagated and sold by any person, legally. Patenting is an expensive proposition, and has rarely been done with hibiscus because the potential return is not great enough to cover the cost of doing it for most growers. There are too many good alternatives for people with hibiscus, and if a patented variety is not easily available then they can go somewhere else and find as good or better varieties than any that are currently patented.

However, exotic hibiscus is a small world and in practice most people do not propagate and sell the non-patented varieties created by an active hybridizer without asking first. To be honest, most hybridizers who are commercial growers like their own plants the most and tend to grow mostly their own varieties for that reason.

In a few cases a grower makes a deal with the hybridizer to sell his or her varieties for payment of a commission. The hybridizer sends wood of his new varieties to that grower first so that the grower paying the commission is the first to release those varieties. As soon as the varieties are sold any other grower is free to collect them and then propagate and sell them without paying a commission, and that is what happens. I actually pioneered this type of deal back in the mid-1990s because I thought that hybridizers went to a lot of effort and expense to create their beautiful varieties and should get something out of it. Of the 3 people I approached back then with the idea, one went for for it, one said he did not need the money and would prefer to not be tied to a deal, and the other one said that although he could use the money his idea was to freely spread hibiscus as far and wide as possible.

So, there are different philosophies about it, but legally speaking the only restriction to growing and propagating plants for sale is when a variety is patented. I doubt if most commercial hybridizers would lose any sleep over a few dozen plants of their varieties being cloned and sold by someone else. If the hybridizer is a non-commercial hobbyist then it is actually desirable for any and all to clone and offer those varieties since increasing the number of people who grow them is the only way to keep them from going extinct in a few years time.

The only time I minded it was when a new commercial grower popped up nearby and sold my varieties in direct competition with me and undercut my prices to get business. Those kinds of things have a way of self correcting and this grower went heavily into debt and then out of business because costs of doing business in California are high and you cannot price your goods under the cost it takes to produce them indefinitely. Duh.......

The other thing to watch out for is trademarked names. A trademark does not protect the variety, it only protects the name. For example, if Dragon's Breath was a trademarked name, which is isn't, I could still legally clone that variety but I could not use the name Dragon's Breath in public sales offerings without permission. Interestingly, the USPTA specifically forbids trademarking a variety name but somehow or other is has been done in recent years so the issue exists. If it is ever challenged I suspect the trademarks will be overturned but in the meantime the issue is clouded.

Long answer, eh? the short answer to your question is that there is not much to be worried about if the number of plants is limited and the sales done privately or through something like eBay (speaking of non-patented plants, of course). Most hybridizers would probably prefer a warning but others would just tell you to go ahead and don't worry about it. In the end we all benefit by the spreading of good information and publicity about hibiscus, and by making sure the new varieties stay around as long as possible.

Charlie