How to Trademark a Fruit

To protect the fruits of their labor and thwart “plant thieves,” early American growers enlisted artists

Before there were fruit patents, there were pictures. Shown here is The Red Astrachan apple. (Massachusetts Horticultural Society)
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In 1847, Charles M. Hovey, a stalwart of the Massachusetts Horticultural Society and the proprietor of Hovey & Co., a 40-acre nursery in Cambridge, began publishing a series of handsomely illustrated prints of American fruits. Most of the trees—apple, pear, peach, plum and cherry—had come from England and Europe. Over time, many new fruit varieties emerged from natural cross-pollinations effected by wind, birds and insects—for example, the Jonathan apple, after Jonathan Hasbrouck, who found it growing on a farm in Kingston, New York. By the mid-19th century, a few new indigenous fruit varieties had arisen from breeding, notably Hovey’s own widely admired seedling strawberry and the prizewinning Concord grape, a recent backyard production of Ephraim Bull, a neighbor of Ralph Waldo Emerson.

At the time, regional and national agricultural markets were emerging, aided by steamboats, canals and railroads. The trend was accompanied by expansion in the number of commercial seed and nursery entrepreneurs. State horticultural societies dotted the land, and in 1848, several of their leaders in the Eastern states initiated what became the first national organization of fruit men—the American Pomological Society, its name drawn from Pomona, the Roman goddess of fruits. Marking these developments, in 1852 Hovey gathered his series of prints into a compendium called The Fruits of America, Volume 1, declaring that he felt “a national pride” in portraying the “delicious our own country, many of them surpassed by none of foreign growth,” thus demonstrating the developing “skill of our Pomologists” to the “cultivators of the world.” Further evidence of their skill came with publication of Volume 2, in 1856.

I first came across Hovey’s book while researching the history of new varieties of plants and animals, and the protection of the intellectual property they entailed. In the mid-19th century, patent protection did not extend to living organisms as it does now, when they are not only patented but also precisely identifiable by their DNA. Still, fruit men in Hovey’s era were alive to the concept of “intellectual property.” Operating in increasingly competitive markets, they offered new fruits as often as possible, and if they were to protect their property, they had to identify it.

Hovey’s aims transcended celebration. He published the illustrations so the fruits could be reliably identified by growers as well as sellers, and especially by the innovators who first brought them out. I discovered upon further digging—in nursery catalogs, handbooks and advertisements—that his effort exemplified the beginnings of a small industry of fruit illustration that was an integral part of the pomological trade in the latter half of the 19th century. And much of it, while produced for commercial purposes, was aesthetically arresting. Indeed, it combined traditional techniques and new technology, leaving us a large, often exquisite body of American botanical art.

The need for pictures was prompted by the proliferation of fruit names that accompanied the multiplication of varieties. Fruits in the United States were bought and sold under a riot of synonyms, creating, Hovey noted, “a confusion of nomenclature which has greatly retarded the general cultivation of the newer and more valuable varieties.” One popular apple, the Ben Davis, was also called Kentucky Streak, Carolina Red Streak, New York Pippin, Red Pippin, Victoria Red and Carolina Red. William Howsley, a compiler of apple synonyms, called the tendency of “so many old and fine varieties” to be cited in horticultural publications under new names “an intolerable evil, and grievous to be borne.”

Variant nomenclature had long plagued botany. Why now such passionate objections to the proliferation of synonyms, to a mere confusion of names? A major reason was that the practice lent itself to misrepresentation and fraud. Whatever their origins—hybrids, chance finds or imports—improved fruits usually required effort and investment to turn them into marketable products. Unprotected by patents on their productions, fruit innovators could be ripped off in several ways.

In the rapidly expanding nursery industry, a good deal of seedling stock was sold by small nurseries and tree peddlers, who could obtain cheap, undistinguished stock, then tell buyers it was the product of a reliable firm or promote it as a prized variety. Buyers would be none the wiser: a tree’s identity often did not become manifest until several years after planting.

Fruit innovators also suffered from the kind of appropriation faced by today’s originators of digitized music and film. Fruit trees and vines can be reproduced identically through asexual reproduction by grafting scions onto root stock, or by rooting cuttings directly into soil. Competitors could—and did—purchase valuable trees, or take cuttings from a nursery in the dead of night, then propagate and sell the trees, usually under the original name. A good apple by any other name would taste as sweet.

Nurserymen like Hovey founded the American Pomological Society in no small part to provide a reliable body of information about the provenance, characteristics and, especially, names of fruits. The society promptly established a Committee on Synonyms and a Catalogue, hopeful, as its president said, that an authoritative voice would be “the best means of preventing those numerous impositions and frauds which, we regret to say, have been practiced upon our fellow citizens, by adventurous speculators or ignorant and unscrupulous venders.”

Yet the society had no police power over names, and its verbal descriptions were often so inexact as to be of little use. It characterized the “Autumn Seek-No-Further” apple as “a fine fruit, above medium size; greenish white, splashed with carmine. Very good.”


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