Plant spotlight

Canna ‘Phasion’

I’ll never forget the day in June 1997 when I first met Canna ‘Phasion’ in person. For normal people, it would be like meeting Elvis or Barbara Streisand. I had long been a fan of canna lilies, having promoted them for years including something I rarely admit in public…introducing them to the NC Department of Transportation back in 1986. Most of what I had grown was the bright red, Canna ‘The President’, although I did have a couple of the nice variegated leaf forms like the lovely Canna ‘Minerva’, and Canna ‘Bengal Tiger’ as well. In my plant nerd circles, rumors had been rampant of a new striped leaf canna that would blow the others away and each of us were scrambling trying to be the first to secure this new gem.

Finally, the truck arrived and there they were….an amazing site indeed.  Canna ‘Phasion’ was like nothing I’d ever seen. Everyone who’s ever seen it falls immediately in love…provided you like tacky, shock gardening. Like all cannas, Canna ‘Phasion’ emerges at the first sign of spring heat, and by early summer has reached a dramatic 6’ in height. Unlike most cannas, the foliage alone is reason to grow Canna ‘Phasion’. Each leaf is striped red, purple, and green.  Being a mutation of the old garden favorite, Canna ‘Wyoming’, Canna ‘Phasion’ is also topped with a spike of large bright orange flowers during the summer.

Like most cannas, they can be grown as hardy perennials in our climate, provided the planting site doesn’t stay wet in the winter months when the plant is dormant.  Plenty of moisture during the summer months along with a good, nutrient-rich, organic soil will result in the best plants.  If you canna gets tired looking in the summer months, no problem…cut the plant to the ground and it will return quickly with a renewed vigor.
For all of its beauty, Canna ‘Phasion’ has a delightfully sordid past, thanks to that all-to-common human emotion…greed. The story reads like a horticultural who-dunnit. The reported inventor of the Canna ‘Phasion’, Jan Potgeither of South Africa filed for and later received Plant Breeder Rights for the canna in August 1994 (South Africa), September 1996 (US patent), and November 1997 (EU Plant Breeders Rights). Both patenting and Plant Breeders Rights can only be granted by the inventor for a newly developed plants and subsequently make it illegal for anyone else to propagate your plant without a license from the patent owner.
Now, the problem is that Potgeither lied on the applications as later determined by both EU and South African courts. It found that Canna ‘Phasion’ had actually been grown in Zimbawe since the mid-1950’s…oops. This didn’t stop his marketing firm the Anthony Tesselaar group from legally strong-arming California growers who were already growing the plant prior to the illegal patent application, including the late Gary Hammer, who first brought the plant into the US.

The legal strong-arming didn’t stop in the US as they also brought infringement suits against South African growers, many of which had grown the canna for 20+ years. Finally, in 2003, the Plant Breeders rights were voided by courts in both South Africa and the European Union. Because of a problem with US patent law, which allows people to keep their patent applications secret until granted, no one in the US has taken the time to have the US patent voided, so until September 2016, the restrictions on propagation, although fraudulent, remain in place. That being said, Canna ‘Phasion’ is still widely available, and I hope you will find a place for it in your sunny garden.
After many years and lots of money on lawyers, the courts in both South Africa and Europe declared the Plant Breeders Rights null and void, since they found that Potgeither had lied on the applications indicating that he was the inventor, and that the plant was new. Unfortunately, the US patent office didn’t get the memo…actually, citizens have to make a legal challenge, which still hasn’t happened in the US.
The Plant Breeders rights case began to unravel when Potgieter and his licensed marketing firm, Anthony Tesselaar tried to go after other South Africa grower who had infringed on their Plant Breeders Rights. The suit was actually brought by South African garden personality, Keith Kirsten, who sued Weltervrede’s Nursery in 2001.
Unfortunately, Potgeither didn’t actually discover the plant as was claimed in a 2001 lawsuit. It turns out the canna was discovered by South African tv personality, Keith Kirsten, who found it at a nursery in Bethel, South Africa. The Tesselaar group also sued South African nurseryman Pieter Breugem for selling 3000 Canna ‘Phasion’ without a license.
In the 2001 case, Keith Kristen claimed to have first spotted the canna in 1991 in the garden of the since deceased (1993) Theunie Kruger, where he returned home with approximately 20 plants. Kruger was the brother-in-law of Jan Potgiether, filed for the patent and Plant Breeders Rights, but in 1994 ceded the rights to Keith Kirsten. Kruger of Bethal Nursery obtained his plants from Zimbabwe (formerly Rhodesia) in 1969, and had sold the plants at his nursery starting in 1976 as Canna Red Leaf Variegated.
In the lawsuit, Weltevrede Nursery claimed to have gotten the canna from Zimbawe, where it had been sold for decades, therefore making it ineligible for Plant Breeders Rights, which can only be granted to a new invention. Weltevrede Nursery and Pieter Breugem both lost their case, since the case was heard by a judge who had no specialty in intellectual law cases. After the verdict, other nurseries in South Africa banned together to appeal the case, based on the incompetence of the judge and the South African Plant Breeders Rights (PBR) inspector. Their cases were won on appeal when it was realized that the applicants had lied on the application and the plant was never eligible for protection.
In Europe, a 2002 similar challenge was launched by Keith Hayward, holder of the National Canna collection. Hayward also showed that the same plant had been grown and documented in the UK since 1994 under the name of Canna ‘Durban’. In his discovery, Hayward found that Canna ‘Phasion’ was actually first recognized by a Mr. Rademeyer of Bulawayo, Zimbabwe, who found them in the garden of the house he purchased in 1955. Rademeyer gave plants away to friends, later moving them to a new house in Hilton, RSA in 1961.

– Tony Avent

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