They would then try to confuse the public into associating a particular plant with the nurseries own trademark name by simply marketing the plants under their good trademarked name, while everyone else would be left using the stupid nonsensical cultivar name. As I mentioned earlier, the spirit of Article 17.9 of the Code does not allow for these nonsensical names. Privately, one of the authors of the code told me that the breeders of certain worldwide crops such as alstroemeria, carnations, and roses would raise too much of a fuss if the nomenclature committee made the wording in the Code any stronger. If it ever came down to litigation, there is probably some slick lawyer out there that could actually convince the court that these nonsensical names like Rosa 'BR549' is actually a new word, but let's hope we don't reach that low point. Many growers properly choose to try and recoup their investment in producing a new plant by securing a royalty payment from those producing the plant.
Plant patents are the only legal means of protecting a proprietary plant.
Patents are good for 20 years after the date of patent filing. Patents require quite a bit of paperwork and a fee that many smaller growers may find a bit too high. Many growers now have the false impression that trademarks give them an easier and cheaper alternative to patents, but this is not the case. After this time, anyone could legally propagate and sell a formerly patented cultivar. Some nurserymen discovered that they could walk a tight rope around the spirit of the law and get the 20 year protection that the plant patent provides, plus a further measure of protection by trademarking a second name for each plant, which they would use to market to the public.