Protect your new plant variety

Plant breeders’ rights protect new plant varieties.

A plant variety is a group of plants defined by certain characteristics, which can be distinguished from any other group of plants, and which can be propagated unchanged.

It is important not to confuse a plant variety with a plant species. For example ‘apple tree’ is a plant species, while ‘Jonagold’ is a plant variety within this plant species. So protection is only possible for the ‘Jonagold’.

Once the variety is protected, this results in exclusive rights for cultivating and marketing the specific variety. This means that only you can carry out the following activities related to your protected variety:

• Breeding, propagation or conditioning for propagation;
• Offering for sale, selling or otherwise commercialising your protected variety;
• Importing or exporting your protected variety;
• Stocking for any of the purposes mentioned above.

Others need your permission to do so.

If you have bred or discovered and developed a new plant variety, you may apply for plant breeders’ rights. However, if this process was performed by more than one person, the rights belong jointly to the involved persons, unless otherwise agreed.

If the breeder obtained the new plant variety as part of an employment contract, the plant breeders’ rights revert to the employer, unless otherwise agreed.

If you want to obtain Belgian plant breeders’ rights, the intended plant variety must fulfil the following requirements:

• Novelty: at the date of filing, the variety must not have been commercialised for more than one year within the territory of Belgium, or for more than four years (six years for trees and vines) outside the territory of Belgium.

• Distinctness: the variety must be distinguishable from any other known plant variety based on its characteristics resulting from a certain (combination of) genotype(s).
• Uniformity: the variety must be sufficiently uniform in its relevant characteristics used for describing the plant variety.
• Stability: characteristics used for describing the plant variety should remain unchanged after repeated propagation cycles.

Furthermore, you must choose a suitable denomination for your new plant variety in order to avoid confusion with the name of an existing variety or other older rights like trademarks. This denomination is a generic name and third parties are obliged to use it.

• Plant breeders’ rights provide only limited protection of the variety denomination itself. It is therefore not unusual for a protected variety to also be marketed under a trademark in addition to an established variety denomination. A trademark grants you exclusive rights on the name itself in relation to specific goods. For more information about trademarks see the smart guide. Keep in mind however when choosing a trademark that a trademark cannot be registered if it consists of an older protected plant variety name and it is filed for plant varieties of the same or closely related species.
• People do not need authorisation for private use and non-commercial purposes.
• For example: it is allowed to buy a plant protected by plant breeders’ rights, to multiply that plant and to end up with 5 plants in your own garden. However, it is not allowed to donate nor sell one of those plants to your neighbour, because this constitutes non-private use and commercialisation respectively.
• No authorisation is needed for experimental purposes only or for the development/discovery of new varieties.
• ‘Farmer’s privilege’ means that for some crops, farmers are allowed to reuse part of their harvest to work their fields the following season, if they pay a fair amount to the holder of the plant breeders’ rights. In Belgium this is valid for oats, barley, spelt and potatoes.

The filing fee for Belgian plant breeders’ rights is a fixed amount of EUR 150.

The most expensive part of the process is the technical examination of the plant variety, which will generally cost between EUR 1,900 and EUR 3,900, depending on the plant species. The duration of the examination varies from one year for most ornamental species to six years for certain fruit tree varieties. It is important to know that technical examinations are generally a one-time cost and may be reused for other applications of the same variety.

Once the certificate is granted, an annual tax of EUR 75 is payable for the first year. This increases somewhat in the following years, again depending on the plant species.

In total, the minimum cost of the application, including a new technical examination, for 1 year of protection by Belgian plant breeders’ rights will be around EUR 2,125 while the maximum cost will be around EUR 4,125.

This plant breeders’ right protection lasts twenty-five years, except for trees, vines and potatoes for which the protection lasts thirty years if all annual fees are duly paid.

This depends on what you want to do. Do you want to market your plant variety locally? Or do you want to commercialise it throughout Europe, or even beyond?

If you want local protection, you can apply for Belgian plant breeders’ rights by submitting a plant breeders’ rights application form and a technical questionnaire specific to your plant variety, and by paying the filing fee to the Belgian Intellectual Property Office. All information can be found at the following website: https://economie.fgov.be/en/themes/intellectual-property/plant-variety-right.

Is Europe your target market? Then you should apply for a Community Plant Variety Right in a similar way, this grants you protection throughout the entire European Union, or in certain countries of the European Union. More information can be found at: https://cpvo.europa.eu/en.

You can also select different countries by applying via the national procedures of each country, inside and outside the European Union, where you wish to protect your variety. More information can be found at: https://www.upov.int/portal/index.html.en.