2016 CIOPORA Guide to Plant Breeders' Rights

Guide To Plant Breeders' Rights
2016
NIO MARIN VEGETABLES”
for “fruits and vegetables” would
be refused. On the other hand, the
trade mark could be registered for
“fruits and vegetables” since AN-
TONIO is not considered to be an
essential element of the trade mark
according to the guidelines.
Even more puzzling and is the
following rule provided for in the
Guidelines:
“… when more than one plant
variety denomination appear as an
essential element in a trademark application,
for example a plant variety
denomination for ‘apples’ and another
one for ‘strawberries’, the list of
goods will have to be limited in order
to exclude the goods covered by each
plant variety denomination, that is to
say, apples and strawberries. This also
applies where the two plant variety
denominations are joined in the same
term, for example MARINEGOLD,
where both MARINE and GOLD
are protected; the list of goods will
have to be limited in order to exclude
the goods covered by each plant
variety denomination”.
Various EUTM applications covering
“natural plants” have already been
objected to by the EUIPO, e.g. “Ice
N’ Roses” or “Summer of Love” since
“Ice”, “Rose”, “Summer”, and “Love”
are registered VDs for different
species.
4. The consequences
With regard to a product brand,
i.e. a trademark that shall serve to
designate only an individual variety
of a company, the consequences are
limited. The list of goods can be
narrowed down to the species of the
variety in question and, thereby, most
other species are excluded as possible
sources for conflicting VDs.
If, however, the trademark shall function
as an umbrella brand and, thus,
needs to cover goods such as “ornamental
plants”, “fruits”, “vegetables”
or the like, the problem is obvious.
Suddenly, all kinds of variety denominations
become relevant even if
the denomination in question is only
one part of the trademark elements
– as shown best by the example of
“ANTONIO MARIN VEGETA-
BLES”. Although ANTONIO is
only one element of the application,
the EUIPO would not allow an
unlimited trade mark because of the
earlier VD “ANTONIO”.
And finally, how would the EUIPO
handle a EUTM application “RICE”
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doluptata
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covering “natural plants and flowers”?
The term “RICE” is not a registered
VD according to the CPVO Variety
Finder. However, “ICE” is a VD
for varieties of Oryza sativa L. and
Medinilla Gaudich. Since “RICE”
does contain in its essential elements
the term “ICE”, would the application
have to be opposed to and eventually
limited?
Conclusions
First of all, it seems that the end of
“speaking denominations” has arrived,
since such VDs will inevitably block
countless trademarks literally forever.
Once registered on the UPOV level,
the VD can no longer be used as –
and, more importantly, as an essential
element of – a trademark, even if the
PVR has lapsed. Any investments in
such a name are in vain. Thus, only
coded VD should be used in the
future. Most importantly, all breeder
associations should quickly react and
advocate a revision of Art. 7(1)(m)
EUTMR. The phrase “or reproduce in
their essential ele-ments” needs to be
eliminated from the current provision
as its scope seems almost indefinite.
In any event, choosing the right trade
mark in the plant sector has become a
challenging task. |||
October 2016 | www.FloraCultureInternational.com 29