Farming Carbon, Plant Variety Names, and other legal news to ponder from Cape Law Firm

Agricultural carbon capture steps into center stage

The recently introduced a federal Bill with substantial bipartisan support, shows just how much attitudes have changed towards carbon reduction in the farm sector. The proposed legislation directs USDA to develop a third-party certification program, establish standards, and provide technical assistance for carbon-capture farming practices. Farms could then generate carbon credits which could be sold in private environmental markets. USDA will also serve as a clearinghouse of protocols and practices that would qualify for credits. Selling the credits would generate an additional revenue stream for farmers. Conceivably, USDA could implement a carbon-capture certification program that operates similarly to the National Organic Program.
The Bill is among a number of new policies that aim to bring agriculture into the climate-change discussion. Earlier this year USDA offered a $5/acre crop insurance premium benefit for planting cover crops, a practice with carbon-capture advantages. These sorts of measures are gaining the support of ag organizations that have traditionally opposed climate-based legislation.
Long-term success of any carbon market for agriculture will require the ability to measure carbon captured by the soil and the ability to realize a profit from selling the credits.

Cape Law Firm’s Frequently (or Randomly) Asked Questions

Can I use a trademark (brand name) as part of the name for a plant variety?

The short answer is “No.” A plant variety name is meant to identify a specific variety of plant, regardless of who grows or produces the plant. Federal law allows a plant variety to have only one name. This ensures that anyone buying or selling the particular variety is getting the same variety every time.
In contrast, a trademark (or brand) is meant to identify the source of specific goods or services, which is usually the seller or owner of the goods. Thus, a specific variety (e.g., “Golden Crisp” carrots) may be grown and sold by many companies, all of which have their own trademarks. If the variety name were trademarked, then the mark would lose its function as a source identifier. The basic rules governing the interplay between variety names and trademarks can be summed up:

  • Variety names cannot be trademarked
  • Trademarks, by themselves, cannot be a variety name
  • A variety name may incorporate a trademark, but the mark will lose its status as a trademark because anyone that markets the variety will be required to use the full name of the variety, which includes the trademark

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