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Legal Protections for the Fresh-Cut Flower Industry, Floriculture, and Floral Businesses

By: Ira Cohen, Esquire, Partner, Henkel & Cohen, P.A., Miami

“Just living is not enough…one must have sunshine, freedom, and a little flower.”

– Hans Christian Andersen

The Miami law firm of Henkel & Cohen, P.A. represents breeders, distributors, exporters, growers, importers, retailers, and on-line businesses in the floriculture and agriculture\produce industries. Schedule an appointment to discuss your business needs and legal interests.

You say your floral enterprise is blooming. And your fresh cut flower business is growing. Everything is, as the old song goes, “coming up roses” for you. Still, every rose has its thorns. Is your business legally compliant? Is your business legally protected? Are your business transactions well-documented and, where applicable, covered by appropriate contracts? Are you suffering from a drought of payments or thrashing through collection of receivables problems? Are your brands, names, and marks monitored, protected, and enforced? Are your sales and marketing materials protected? Are your internet home website and/or other social media sites protected?

Sun, light, air, water, minerals are necessary for your plants. In order for your floral industry business to be able not just to survive, but to thrive, your business needs to be legally tended to, and properly cultured. The elemental ingredients of business acumen, legal experience, and dedication to clients’ causes, concerns, and needs, provided by Henkel & Cohen, P.A., will foster your efforts and enable your floral industry to live long and prosper.

Floriculture, or flower farming, may fairly be summarized as that branch of horticulture that relates to the cultivation of flowering and ornamental plants for the floral industry. In addition, the creation, by means of plant breeding, of new varieties of flowers, is an important endeavor of floriculturists both at home and abroad.

From a business perspective, the rapidly spreading global enterprise variably known as the “flori-business,” “floriculture,” the flower business, or the floral industry is a profitable concern literally billions of times over. It is beyond debate that U.S. consumers want, need, and desire floral goods and, accordingly, they have been buying them in record numbers over the last several years (e.g., over $31 billion in 2015 [source: U.S. Bureau of Economic Analysis Personal Consumption Expenditures (2016)]).

Floriculture crops include, but are not limited to, bedding plants, flowering garden plants, potted plants, plants for home, cut cultivated greens, and fresh cut flowers. Flowering plants are, by and large, vended in pots designed for indoor usage. Examples of such flowering plants include poinsettias, orchids, chrysanthemums, and azaleas. Foliage plants are also sold in either pots or hanging baskets and are designed for indoor or patio usage by consumers or by commercial establishments (e.g., hotels and restaurants).

Cut flowers traditionally are sold in bunches (e.g., bouquets), along with cut green and/or white foliage. Such production of fresh cut flowers is referred to as the cut flower industry or, simply, the floral industry. Top shelf, fresh-cut flowers includes roses, carnations, lilies, zinnias, gladiolus, peonies, dahlias, freesias, and chrysanthemums. As for fresh cut flowers, many are, of course, produced domestically in the U.S.A.

At the same time, a tremendous amount of fresh cut flowers are imported from Colombia (#1) and Ecuador (#2), as well as The Netherlands, Canada, and Mexico, among other nations. The top 10 are rounded out by Costa Rica, Thailand, Guatemala, Israel, and Kenya. The total year-to-date imports to the U.S.A. of such fresh cut flowers (for 2017) is $728.42 million. Colombia is the giant among these, coming at $424,272,994 (or 58.25%). (All figures are for January thru June 2017).

The top customs/import districts for fresh cut flowers are Miami (#1), Los Angeles, New York City, Buffalo and San Diego. Weeding out the less important districts entirely, we may observe that Miami is the clear leader, with 81.62% of the fresh flower imports representing some $594,539,233 (for January thru June 2017).

So, whether you have a floral business in California (the leading state with floriculture crops) or Florida (the next largest producer), or in other prominent states involved in the floriculture trade, such as Illinois, Maryland, Michigan, New York, New Jersey, North Carolina, South Carolina, Oregon, Texas, and Washington, business undoubtedly has been blossoming for you.

But, what budding legal concerns have arisen related to your flower business? Keep reading to learn more about the many different subjects on which law can place an important part of your flower business.

Business Contracts and Business Transactions

Henkel & Cohen represents clients in vast array of floral business transactions (asset sales, stock purchases, investments, mergers, etc.) and regularly drafts, advises on, and negotiates contracts for various business deals and to document commercial and floral business relationships.

Intellectual Property Litigation: Trademarsk, Copyrights, & Patents

Henkel & Cohen enforces floral business Intellectual Property rights including in the fields of trademark, service mark, copyright, and patent. Whether in a court of law, or before the appropriate administrative agency, Henkel & Cohen, P.A. serves and protects its client’s legal rights and legal interests.

Your Floral Business Trademark Portfolio

Using Trademark Law to Protect Your Floral Business Name & Logo

Example: Midnight Sun Flowers®; and Midnight Sun Flowers, Plus (Logo) Design

Recommendations: A U.S. Service Mark on the name and mark for the business services (and logo, if applicable) must be secured. The mark should be displayed (a service mark notice) on all packaging, boxes, stickers, tags, and labels. The service mark should also appear on brochures, business cards, letterhead, invoices, and marketing and promotional materials.

Protect Your Floral Business Trademarks

Examples: Roses, sunflowers, lilies. Midnight Sun Flowers® roses

Recommendations: A U.S. trademark on the fresh cut flower goods must be secured. In addition, the mark should be displayed (a trademark notice) on all packaging, boxes, stickers, tags, and labels.

Important Note: Intense competition in the floral industry sector makes name protection and branding key for growers, marketers, exporters, importers and distributors. Branding serves to distinguish produce commodities from the goods of third parties in the marketplace. In other words, your mark allows customers to gravitate toward your floral products, knowing the name means quality and value. That differentiation and identification in the marketplace helps both this year’s bottom line and the longevity of your floral business. Trademarks may consist of a variety of branding devices in your lawyer’s intellectual property toolkit including, but not limited to, words, logos, names, colors, sounds, smells, images, and/or shapes. Federal protection means you can sue mark infringers in U.S. federal court and take advantage of the many and varied forms of judicial relief and legal remedies available to trademark and service mark registrants.

Your Floral Business Copyright Portfolio

Using Copyright to Protect Your Floral Business Sales & Marketing Materials

Examples: Brochures, flyers, and other advertising, marketing, promotional, and sales materials.

Recommendation: U.S. Copyright protection should be secured. An appropriate copyright notice should be displayed on all materials.

Using Copyright to Protect Your Floral Business Website

Example: www.MidnightSunFlowers.com/.net/.org/info/.us

Recommendation: U.S. Copyright Protection must be secured on the entire website presentation of your floral business.

Important Note: Federal Copyright protection means you can sue copyright infringers in federal court and take advantage of the many and varied forms of judicial relief and legal remedies available to Copyright registrants.

Your Floral Business Patent Portfolio

Patent Law can Protect Your New Floral Varieties through Plant Breeder’s Rights

Example: If you are the creator of asexually reproduced (by vegetation) varieties, excluding tubers, then:

Recommendation: Secure protection by applying for a U.S. Plant Patent and/or a U.S. Utility Patent (e.g., U.S. Pat. Pending; U.S. Plant Patent No. 0123456789, filed Dec. 25, 2016).

Example: If you are a breeder of new varieties of sexually reproduced (by seeds) seeds and tubers and F1 hybrids, then:

Recommendation: Secure legal protection from the U.S. Department of Agriculture under the Plant Variety Protection Act (“PVPA”). The use of PVP for seed strains of ornamental crops is increasing.

Important Note: Federal Patent protection means you can sue Patent infringers and PVPA pirates in federal court and take advantage of the many and varied forms of judicial relief and legal remedies available to registrants.

PACA & Produce Marketing Law

For those businesses involved in both fresh cut flowers and fresh produce (i.e., perishable agricultural commodities), Henkel & Cohen also provides legal advice to and representation of the produce industry, including on issues involving the Perishable Agricultural Commodities Act (“PACA”), in administrative reparation proceedings before the U.S. Department of Agriculture, enforcement of PACA Trust rights in federal court, and resolving business disputes in state and federal courts.

Henkel & Cohen, P.A. – Law as a Service Profession and Legal Representation as a Privilege

As a boutique law firm concentrating its practice in specific fields of law and serving a select clientele, it is never forgotten by the attorneys at Henkel & Cohen that law is a service profession and that a person or company represented by the Firm is not a file number; they are the client, the most important part of any law practice. Henkel & Cohen welcomes all client inquiries and respects all client relationships with existing counsel in referred matters.

“The Amen of nature is always a flower.”

– Oliver Wendell Holmes, Sr.,
  Justice, U.S. Supreme Court

 

The content of this article is intended to provide a general guide to the subject-matter. It is neither meant to be, nor should be construed to be, legal advice or legal opinion nor forms an attorney\client relationship. Specific legal advice should be sought about your specific case or circumstances.

 

About Henkel & Cohen

Henkel & Cohen, P.A. is a Miami, Florida boutique business litigation law firm whose partners hold the highest AV rating from Martindale-Hubbell®. For additional biographical and contact information, please visit the firm's website at www.miamibusinesslitigators.com.