2014 CIOPORA Chronicle

The business magazine for horticultural plant breeding 

JUNE 2014 

WWW.CIOPORA.ORG 

CIOPORA POSITION 

PAPERS ON IP 

Interview with Andrea Mansuino 

and Dr. Edgar Krieger 

IP SOLUTIONS 

FOR THE FUTURE 

Creative Barcode 

MISSION ‘FUTURE’ 

The best way to predict 

future is to create it 

(P. Drucker)

Table of Contents 

07 

Innovation bridges gap 

between tradition and future 

10 

The importance 

of being different 

12 

Challenges of 

modern horticulture 

16 

Crop Sections as 

backbone 

of the association 

20 

IP Solutions 

for the Future: 


24 

Combatting 

online trademark 

infringement in 

ornamental and 

fruit varieties 

26 

‘Mission FUTURE’: 

CIOPORA’s position 

papers on IP 

30 

Preparing for 

future markets 

for major fruits 

4 www.FloraCulture.eu | CIOPORA Chronicle June 2014

June 2014 CIOPORA Chronicle 

33 

Poinsettia breeding 

is a world of regions 

34 

Patents - a fruitful 

alternative for PVRs? 

36 

Trademarks and 

variety denominations 

- harmonisation 

underway? 

38 

Protecting Plant 

Variety Rights in 

Ukraine 

39 

Breeding, 

imagination and 

market vision 

40 

Enforcement reform: 

an Australian story 

42 

Different Italian 

routes against 

counterfeiters 

44 

Ecuador: changes 

are in the works 

46 

Growers’ perspective 

on the role of 

effective IP protection 

48 

Productive IP debate 

in realm of flowers 

CIOPORA Chronicle June 2014 | www.FloraCulture.eu 5

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Become a member of CIOPORA 

CIOPORA is an international, non-governmental organisation 

representing the interests of breeders of asexually reproduced 

ornamental and fruit varieties worldwide. CIOPORA has currently 

117 members including individual breeders, breeding companies, IP 

lawyers and royalty administration services. Top priority of CIOPORA 

is the constant development and enhancement of systems of Intellectual 

Property Protection for plant innovation, which include Plant Breeders’ 

Rights, Patents, Plant Patents and Trademarks. CIOPORA acts as a 

strong voice of the industry in regard of IP protection. The association 

enjoys the observer status at the Community Plant Variety Office 

(CPVO) and the International Union for the Protection of New 

Varieties of Plants (UPOV). 

The Board invites you to join CIOPORA’s global member community. 

The persons eligible for membership are defined in the CIOPORA’s 

bylaws. Each member candidacy is subject to approval by the 

CIOPORA Board. 

More information about membership: www.ciopora.org. 

Contact us: info@ciopora.org 

Tel: +49 (0)40-555-63-702 or Fax: +49 (0)40-555-63-703 


From the President 

Innovation bridges 

gap between 

tradition and future 

Andrea Mansuino. 

This year, the Ciopora Chronicle features Alice in Wonderland on its front cover. You may ask 

why? 

Named after the young protagonist of Lewis Carroll’s book, the Alice-in-Wonderland syndrome 

is a disorienting condition that affects human perception. Sufferers may experience size distortion of 

other sensory modalities that make them believe that the world around them is bigger than reality. 

We, breeders, seem to suffer from this syndrome sometimes. We dream with our eyes wide open, we watch 

reality and see it differently, often bigger or more colourful. We have visions and work hard to make 

them a reality, sometimes only with our imagination to guide us. 

CIOPORA was founded in 1961 in Geneva. I am proud to say that my father co-signed the bylaws 

that established the specific rules of guidance by which the newly formed association was to 

function. I am equally proud to be the fourth generation of the Mansuino family of plant breeders 

who have worked tirelessly for decades developing innovation, with an inexhaustible passion 

and drive. I fully agree that breeding, propagating, growing and trading flowers is a business. 

But innovation, in whatever business and area of human interest, cannot only be motivated by 

economic targets. As there cannot be economic development without research and innovation, 

I believe that there cannot be innovation without a vision, without inspiration, passion, culture, 

tradition, emotions, intelligence, and love. 

Innovation has its roots in tradition, because it changes what already exists into something new 

and, possibly, something better. Innovation looks into the future, because it only takes shape after 

the creator has developed a clear vision, and worked hard in order to make it real. 

I vividly remember how enthused my father, aunts and great-uncle were about new colours and 

flower shapes, showing me black and white pictures of new carnations and small-flowered roses 

that boasted much more colour than the best 3D screen images of today. 

I was a child, but from that moment on I had decided that my destiny was to follow in my family’s 

footsteps, to keep dreaming and working for dreams to come true. 

Times have changed. For today's plant breeding is not about beauty alone. The breeders are also 

interested to know whether a new variety can be considered clearly distinguishable from another 

one, thus deserving own protection even if the colour on the back of a leaf is somewhat greener or 

thorns are slightly more curved. Nowadays, innovation consists of snatching away a gene from a 

cabbage and plugging it into a daisy. 

Have times really changed? Maybe not. Ornamental plant breeding continues to be a world of 

highly visionary entrepreneurs. Still, many breeding companies (whether small or big) do believe 

that innovation is the expression of a vision and needs to be rewarded and protected. 

There is a reason why children at school still study history. Because they learn how to shape their 

future thanks to experiences and visions of their ancestors. 

>>> 


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From the President 

Breeder’s meeting at Sanremo-based 

Mansuino Nurseries. The year was 1956. 

Left to right: Harry Wheatcroft (Wheatcroft 

Roses, UK), Vittorio Barni ( Rose Barni, 

Italia), Quinto Mansuino (Mansuino Rose, 

Italia), Gene Boerner (Jackson & Perkins 

Roses, U.S.A.), Ada Mansuino (Mansuino Rose, 

Italia), Domenico Aicardi (Rose Aicardi, 

Italia), Alain Meilland (Meilland International, 

France). Photo credits: from the Mansuino 

private photograph collection. 

There is also a reason why CIOPORA today advocates for a better protection for innovation, and 

for a deeper respect for those who have really improved the world of plants and continue to do 

so. Inside our association we have been discussing and debating for years now, the importance 

of granting a strong protection to innovative varieties, and also about the need to create a fair 

environment for those who are granted a protection title for their new varieties, and obviously want 

to exploit their rights and enforce them against piracy and plagiarism. 

As we will read in this fifth edition of the CIOPORA CHRONICLE, our recently held Annual 

General Meeting in The Hague, was a very important and extremely successful one. For four days, 

our members exchanged ideas and research findings while participating in IP workshops and in 

the full audience session about innovation, its effective protection, progress and vision. 

A survey made by an external advisor has outlined weaknesses and strengths of CIOPORA, and 

this has been the basis for discussion on where we want to see our organisation in five years from 

now. Constructive criticism will carry productive consequences, and we will all work together to 

improve our ‘family’. 

The debate on the new position of CIOPORA on Intellectual Property has brought significant 

results, and members have agreed on CIOPORA’s position, including many fundamental aspects 

for a better protection of innovation. The new CIOPORA Board will now include members from 

Europe, the USA and Oceania with a very well balanced composition that covers many countries 

and many different fruit and ornamental crops. I am very positive about the future of CIOPORA. 

We have made big steps towards the future, without forgetting tradition. 

In a way, today’s CIOPORA is like its breeder members, deeply rooted in tradition and with a clear 

vision for the future. We all agree that innovation bridges the gap between tradition and future! 

Not only Alice but also CIOPORA and the breeders’ community as a whole share the same 

syndrome. We see the world around us as bigger, more colourful and more promising. A vision 

where, in the future, innovation will be stimulated by a system of rewards and a safe environment 

for our rights. 


Opinion 


of innovative 

breeding, not only 

for horticulture but 

also for the society 

at large cannot be 

stressed enough. 


of being different 

by Jaap N. Kras 

Seen from the commercial 

viewpoint, the urge to differentiate 

yourself and your 

products in the marketplace has 

grown tremendously. Western 

markets are showing market saturation 

in ornamentals, so the pressure 

to reinvent flower shops and garden 

centres increases. Meanwhile, 

consumers have lost their taste for 

fresh fruits, urging fruit growers to 

promote consumption by bringing 

new and different varieties onto the 

market. 

Main message 

Over the past decades, we have 

learned that there are basically two 

methods of selling your product: 

being cheaper than your competitor 

or being unique. For years, the 

pressure of competition forced 

growers to produce larger volumes 

for a cheaper price with a major 

focus on efficient production. 

As a result, breeders launched 

new varieties that featured a faster 

growth and higher yield per m². 

There are many examples, but a 

quick look at the current range of 

available tulips, Gerberas, roses, 

Chrysanthemums and even 

Phalaenopsis is sufficient to 

demonstrate this tendency. 

Higher productivity is the 

ornamental breeding industry’s 

motto. But the truth is that while 

increasing labour costs will force 

the industry to further automatise, 

growers in general are no longer 

able to produce more and at lower 

costs. Being different is the main 

message for the future. 

Reviving crops 

When the life cycle of a product 

comes to an end, new products 

have to be introduced, whether it is 

new challenging crops or improved 

varieties of already existing cash 

crops. The success of Hydrangea, 

Ranunculus and Phaleanopsis 

over the last decades is a perfect 

Rose breeders perfectly understand the importance of being different 

(Photo credits: Roses Forever). 

example of how growers successfully 

introduced new crops, how 

varieties constantly change and 

revive the existing rose, tulip, lily 

and Chrysanthemum industries. 

Currently, we are blessed with an 

enormously wide range of products 

with plenty of new crops making 

us stand out among our competitors. 

To stimulate professional 

breeding, the breeders should be 

offered a reasonable return on 

investment. Individual breeders 

are often family-based, small to 

medium sized companies with little 

influence on governmental and 

institutional decisions from the EU 

or the UPOV. So the cooperation of 

breeders in industry associations is 

necessary to provide guarantees for 

the future. 

CIOPORA in search 

of answers 

At the beginning of April, I had the 

honour to visit CIOPORA’s Annual 

General Meeting in The Hague, 

the Netherlands. Two topics on 

the agenda of the CIOPORA IP 

Workshops caught my attention: 

EDV and Minimum distances. 

The questions that arose during 

the course of the discussion on 

these topics included: When do we 

have a new variety and does this 

new variety fall under the scope of 

protection of an existing variety? 

In my opinion, both subjects are 

two different angles of the same 

problem that should have been 

solved when the UPOV convention 

on Plant Breeders’ Right was signed 

in 1961. A third subject on the 

agenda was the ‘exhaustion’, since 

in certain situations exhaustion can 

be a threat for the breeder. 

Wider distance 

between varieties 

A wider distance between varieties 

is the general answer. Often people 

give the example of a grower who 

accidentally has found a mutant in 

his flower bed or greenhouse. The 

saying goes as follows: a grower purchases 

starting material of a protected 

variety, pays the royalty fee and 

drives home to grow flowers. After 

planting he comes across a mutant. 

He can now apply for a new PBR 


on this mutant without having 

to do anything else, but realising 

that a new mutant is an improvement 

and has a commercial value. 

The breeders claim this mutant 

should fall under the rights of the 

original title owner. If we widen the 

minimum distances between varieties, 

most mutants will fall under 

the right of the original applicant. 

Indeed, this happens sometimes 

and such mutants cause problems. 

But other breeders are worse. 

EDV 

What does history teach us? As 

soon as a breeder introduces a new, 

original and commercially successful 

variety, many other breeders 

jump on the band wagon and, with 

the breeders exemption in their 

hand, start breeding with this new 

variety in order to create a very close 

‘relative’ of the already successfully 

introduced variety. 

To close this gap, the 1991 act of 

UPOV introduced the concept of 

EDV - a horse behind the carriage. 

Indeed, you can have a new PBR 

on that variety, but as your variety 

is essentially derived from another, 

already protected variety, you still 

need the permission of the title 

holder of the initial variety. My 

answer is that EDV is an impractical 

classroom solution. First, we had 

one problem: is the new variety 

different enough to grant the 

variety a new PBR? EDV doubles 

this problem: not only do we have a 

new variety, but the next question 

is whether this new variety is essentially 

derived from an existing 

variety? 

It’s time to develop a system 

that will help us to accept wider 

distances between varieties. EDV 

makes the problem, which UPOV 

tried to solve with the introduction 

of it, twice as big. 

There are more strange rules in the area of Plant Variety 

Rights. First, included in the text of the Convention 

and in the laws is a rule that also stipulates that existing 

varieties can be protected by a PBR as long as they are 

not commonly known. Then, this stupidity is rectified 

by making an even more questionable rule. Plant 

Breeders’ Rights can only be granted to those, who have 

performed breeders’ activities. 

Where does it all end? 

The general meeting of CIOPORA adopted a paper on 

Minimum Distance that gives hope that this neverending 

discussion might end: sufficient minimum 

distances between varieties, clear distinguishability, 

which implies a sufficiently broad distance between two 

varieties in regard to their important characteristics for 

the crop in question. ||| 

About the author 

Jaap Kras is an industry veteran and owner 

and publisher of FloraCulture International. 

www.fides.nl

Opinion 

It is no secret that 

since the Industrial 

Revolution our world 

has been changing 

rapidly, constantly 

challenging the 

society and the 

world economy to 

swiftly adapt to the 

new circumstances 

and the latest 

technology. This has 

been an evolutionary 

process: those who 

remained ignorant 

to the persistent 

ticking of the clock, 

those who failed 

to recognise new 

opportunities and 

to metamorphose 

in accordance 

to the changing 

environment, 

often found 

themselves outrun 

by the time and 

the system. Today 

is no exception 

as our digitalised, 

urbanised, 

globalised and a 

somewhat greener 

society unfolds 

itself before our 

eyes. The Ciopora 

Chronicle asked four 

horticultural experts 

to share their views 

on how the latest 

tendencies of the 

social and economic 

development are 

affecting the green 

sector and how 

it should react 

to the changing 

circumstances. 

Challenges of 

modern horticulture 

Stepping up to the challenge of digital 

Most breeders today maintain 

a website, but miss out on the 

opportunity to effectively use 

the internet for their marketing 

activities. Many websites 

are poorly structured and 

outdated. In a world where 

people rely on the internet for 

information, there is an urgent 

need for breeders to step up 

their online game in order to 

stay competitive and gain a 

better understanding of their 

customers’ preferences. 

Social media 

isn’t the solution 

Many companies turn to social 

media in order to inform potential 

clients about their products. A recent 

report (E-commerce Quarterly 

EQ4 2013 by Monetate) on the 

usefulness of social media states that 

social media are not effective for 

business-to-business (B2B) promotional 

activities. When professionals 

are looking for products online, 

they start at Google.com (or another 

search engine), rather than passively 

checking Facebook updates. 

by Pieter Kroese 

Overview of product interest from buyers of the Russian Federation 

(April 2014). Individual percentages reflect total percentage of inbound 

search from the Russian Federation on FlorAccess.com 

Measuring search 

behaviour leads to 

insights 

If you knew what your potential 

clients are looking for, wouldn’t 

that create valuable insights for 

your business? Wouldn’t it be 

wonderful to see how interested the 

Turkish or UK market is in your 

new creations? What would really 

benefit the horticulture industry is 

to collaborate and create a common 

platform: a central place on the 

internet where everyone’s assortment 

can be found and that could 

be used to aggregate and analyse 

search behaviour. Such a platform 

captures more data than individual 

websites simply because it offers 

a much wider assortment. 

Subsequently it allows you to 

understand what your customers 

are looking for. 

It’s already happening… 

We have developed FlorAccess.com 

with the sole goal to bridge exactly 

this gap for the floriculture supply 

chain. It informs buyers from 

around the world about assortment, 

availability and source. It is 

independent and allows all parties 

throughout the supply chain to 

inform the market about their 

products, novelties and availability. 

It produces and distributes 


Making sustainability a reality 

information about product 

preferences in all the corners 

of the globe based on search 

behaviour, which facilitates 

the B2B chain in assessing 

where to direct marketing and 

logistical activities. 

Get valuable 

information to boost 

your business 

So once we understand what 

people are looking for, how will 

this benefit the industry? Just 

think of the amount of time 

and money spent on product 

development in horticulture. 

There are few industries where 

product development is still 

so disconnected from a true 

understanding of the demand. 

The internet can’t shorten the 

cycle of product development, 

but it can provide valuable 

customer input along the way 

and accelerate introduction 

of new varieties by informing 

the right channels at the right 

time. When used effectively, 

this is how floriculture companies 

can use the internet to 

adapt to their rapidly changing 

environment. ||| 


Pieter Kroese is managing 

director of FlorAccess.com. 

Before becoming involved 

with FlorAccess in 2012, Pieter 

had held various strategic 

management positions and had 

been active in both the fruit 

& vegetables and floriculture 

industries. 

Plants are good for the 

environment. They play a crucial 

role in the functioning of our 

world and, rather than causing 

environmental problems, are 

one of the key weapons in the 

battle against global warming 

and many more of the worlds’ 

problems. With this huge benefit 

on the side of the industry it 

becomes even more important 

to ensure plant production 

measures up to ever increasing 

sustainability standards. 

Expectations come from NGO 

campaigners, retailers, legislation, 

certification schemes and business 

corporate responsibility. Key challenges 

relate to the management of 

scarce resources and the avoidance 

of environmental pollution. Specific 

challenges vary between countries 

and continents. 

Water 

For many countries the scarcity 

of water, possibly linked with 

climate change or other practices, 

is a significant challenge that 

could lead to some areas being 

unable to produce crops as ‘higher 

priority’ users take precedence. The 

need for production to be water 

efficient, without costing so much 

that it reduces viability, is a major 

challenge for many producers as is 

the threat of water restrictions on 

the end customer. 

by Tim Briercliffe 

Growing media 

The industry is also frequently 

questioned on its use of other 

natural resources. The sustainability 

of growing media and the 

environmental concerns associated 

with the use of peat is a challenge 

for some countries, whereas others 

are forced to find alternative energy 

sources as the cost of fuel for 

heating, and transport makes heated 

glasshouse production in some 

countries uneconomic. 

Crop protection 

Tighter regulatory environmental 

controls worldwide are also reducing 

the availability of pesticides. The 

maintenance of a robust crop 

protection armory is critical for 

growers so the challenge of quality 

crop production with minimal use 

of pesticides is a reality now that 

will only get tougher. 

With an increase in the global 

trade in plants many countries 

are becoming more aware of the 

threats posed by imported pests and 

diseases as well as non-native plant 

species. The industry must take a 

responsible approach here, ensuring 

only the movement of plants that 

do not introduce or spread pests and 

diseases, to avoid more movement 

restrictions in future. Consumers 

and governments will not tolerate 

a trade that damages its own 

environment. Pest Risk Analysis by 

some countries can also slow down 

the introduction of new plants, 

presenting a significant business 

challenge to some businesses. 

Waste minimisation 

Waste minimisation is important 

for business productivity but also 

has a significant environmental 

benefit. How growers deal with this 

issue in future is an important area 

and includes approaches taken to 

plastic plant pots where the ability 

to recycle and minimise carbon 

footprint will increasingly influence 

consumer purchasing behavior. 

Opportunities 

However, with challenges come 

opportunities. Strong environmental 

credentials provide business 

advantage as demonstrated through 

significant global membership of 

sustainability-based certification 

schemes. Also the benefits of 

green planting in urban areas, 

as shown through more worldwide 

enthusiasm for ‘Green City’ 

concepts, will also drive this market 

in the future. The world needs a 

robust plant production industry 

and as long as the sector keeps 

addressing the challenges faced then 

we can all look forward to a future 

that is sustainable in every sense. 

The AIPH Environment & Plant 

Health Committee regularly debates 

these issues to find international 

solutions. ||| 


Tim Briercliffe is Secretary General of 

the AIPH, the International Association 

of Horticultural Producers. 

>>> 


Opinion 

Understanding the implications 

of the Global Village 

Photo credits: Frank Bonnet 

Flowers, once seen as a seasonal 

product in European markets, 

have become an all year round 

commoditised product. It is 

nowadays standard to harvest a 

rose in Kenya today and for it to 

be delivered through a complex 

logistical network to a customer’s 

home almost anywhere in the 

world within 24 hours. 

The floriculture industry, populated 

by a diverse range of businesses 

contributing to the overall supply 

chain (from breeders, propagators 

and growers to shippers, whole 

salers, distributors, retailers and 

florists), today faces increasing horizontal 

and vertical competition in 

every part of its value chain due to 

globalisation. In particular, the industry 

has seen a shift of production 

from the developed countries and 

the entry of developing countries 

into a global trading system over 

the past 20 years, resulting in 

increasingly interdependent 

economies from a macro-economic 

perspective. This process has been 

accelerated by the rapid development 

of and access to international 

communications, technology, 

freight logistics and marketing. The 

recent global recession has further 

prompted demand for reduced 

prices on the floriculture market – 

rather than for reduced quantities. 

by Herman de Boon 

Trends & challenges in the flower value chain 

(CBI Centre for the Promotion of Imports from developing countries). 

Michael E. Porter 

Concepts, such as those proposed 

by Professor Michael E. Porter from 

Harvard Business School, suggest 

that globalisation is driven by the 

need of companies and national 

governments to maintain their 

market share and competitiveness 

through adaptive and innovative 

business solutions. There is a lot of 

evidence of numerous innovative 

responses to the globalisation challenges 

today in the fields of plant 

breeding, greenhouse technology, 

energy and water saving systems, 

integrated pest management, 

post-harvest management, waste 

reduction, sea transport, electronic 

sales platforms, distribution hubs, 

and supply chain optimisation. 

Golden triangle models 

‘Public – private sector – people’ 

models are increasingly demonstrating 

significant benefits in the 

globalisation of the industry. These 

developments, alternatively described 

as “golden triangle” models, 

are characterised by governments 

creating an environment that 

enables innovation and knowledge 

sharing, with industry recognising 

that profitability is linked to social, 

environmental and financial 

risks and civil society adopting a 

monitoring role with respect to 

compliance and sustainability. 

International organisations such as 

CIOPORA and Union Fleurs also 

positively contribute to globalisation 

by bringing together industry 

players to address supply chain 

issues in a coordinated and precompetitive 

way and seeking to 

optimise the enabling and regulatory 

environment for the benefit of 

the value-chain. In this way issues 

that were traditionally dealt with on 

an individual basis are now brought 

into an international arena for 

discussion and resolution. 

Sustainability 

These issues are not limited to 

the business environment but 

also pertain to the social and 

environ mental responsibilities 

of the floriculture industry. 

Globalisation has improved the 

access to information and increased 

the demand for sustainably 

produced goods. To address the 

wider concerns of consumers, civil 

society and investors about where 

the product comes from, how it 

is produced, how people producing 

it are treated and what are the 

environmental and social impact of 

its production and do so in an efficient 

and responsible manner, the 

sector has pro-actively and increasingly 

engaged in coordinated and 

transparent schemes such as, most 

recently, the Floriculture Sustainability 

Initiative (FSI), an innovative 

pre-competitive multi-stakeholders 

platform. 

Opportunities 

Globalisation of the floriculture 

industry has created numerous 

challenges but has equally fostered 

many opportunities, including 

a greater efficiency in the supply 

chain and in the use of natural 

resources, income and lifestyle 

enhancement in developing 

economies, and increased choice 

and competitively priced products 

for consumers. The entrepreneurial 

and innovative capabilities of all industry 

players across the floriculture 

value-chain will determine how 

they are going to meet the challenges 

and remain profitable in an 

ever increasingly competitive and 

global business environment. ||| 


Ir. ing. Herman de Boon is president 

of Union Fleurs, the International 

Flower Trade Association, 

since 2014 and chairman of VGB 

(Vereniging van Groothandelaren 

in Bloemkwekerijproducten), 

the Dutch association for the 

wholesale trade in flowers and 

plants, since 2002. 


Exploring the urban jungle 

In the next 15 years, 60% of the world's 

population will be living in cities with 

over one million inhabitants. This trend 

will severely impact the scope and 

manner in which plants are used – and 

hence have a profound impact on our 

industry as a whole. 

The world's population is currently at just 

over 7 billion; the projections for the next 40 

to 50 years predict that we will be reaching 

between 9 and 10 billion before population 

growth levels off, or indeed slowly start to 

decline. More and more people are already 

fleeing the countryside and moving to cities 

and urban areas. 

Scarce outdoor green areas 

In urban areas, space for outdoor green 

areas is already scarce – and getting scarcer 

still. Full-scale city gardens and parks are 

becoming rare – and yet urban developers are 

realising that plants and gardens play a vital 

role in filtering and sequestering pollutants, 

improving urban microclimates, creating and 

securing environmental niches for plant and 

animal species in urban areas. New ways of 

using plants are being implemented: vertical 

gardens are all the rage, guerilla gardening 

has become a global trend, and breeders are 

churning out petite versions of well-known 

crops that take up less space and are better 

adapted to urban environments. 

Urban gardening 

Furthermore, all the denizens of urban areas 

need sustenance. Instead of trucking fresh 

by Garry Grueber 

In urban areas, space for outdoor green areas is already scarce – and getting scarcer still 

(Photo credits: Garry Grueber). 

produce halfway across continents 

to feed the hungry hordes of citydwellers, 

we are already seeing a 

strong trend towards utilitarian 

urban gardening, and even urban 

agriculture. New cultivation and 

lighting methods are transforming 

high-rise rooftops, abandoned 

factory buildings and derelict 

subterranean tunnels into verdant 

production greenhouses that provide 

truly fresh produce to the urbanites 

without the cost and environmental 

impact of long-distance transport. 

Quality of living 

Lastly, we should not forget the vast 

impact that plants and green spaces 

have on the overall quality of living 

in urban environments. Mankind 

is, and always will remain, a product 

of nature, genetically hardwired 

to appreciate and yearn being 

surrounded by living things. For our 

industry, increasing urbanisation 

is not only a challenge, but also a 

huge opportunity. Looking forward, 

our industry will need to develop 

and offer water-wise plant varieties 

that will thrive well in the often 

hostile urban environment, require 

little space, provide year-round 

interest and uses. Our combined 

knowledge and expertise in growing 

and breeding plants will be more 

important than ever in tomorrow's 

increasingly urbanised world. ||| 

More and more 

people are 

already fleeing 

the countryside 

and moving to 

cities and urban 

areas (Photo 

credits: Garry 

Grueber). 


Garry Grueber has been involved in product development 

for over three decades. He has worked closely with many 

breeders from around the world, and has been involved 

in the successful introduction of many new product lines, 

varieties and marketing concepts over the years. He is 

now a managing partner in Cultivaris North America LLC 

and Global Breadfruit. 


Voices of the industry 

CIOPORA unites 

breeders of many 

different plant 

varieties, both in 

ornamentals and 

fruits. In order to 

achieve a better 

IP protection 

for breeders’ 

innovations, it is 

necessary to listen 

out to all of the 

voices among their 

ranks. The CIOPORA 

Crop Sections 

are the groups of 

like-minded plant 

breeders who, in 

spite of competition, 

come together to 

discuss the most 

persisting problems 

in their crops, 

including cut roses, 

Gypsophila, pot 

plants, carnation and 

fruits. It is hardly 

surprising that the 

Crop Sections form 

the backbone of 

CIOPORA. 

Crop Sections as backbone 

of the association 

CIOPORA Crop Section Gypsophila 

is going strong 

Established at the association’s 

AGM 2013 in Angers, France, the 

Crop Section Gypsophila is the 

newest addition to the Ciopora 

family. 

Gypsophila paniculata is a species 

of flowering plant of the Caryophyllaceae 

family, native to central and 

Eastern Europe. It is a herbaceous 

perennial with lots of branching 

stems covered in clouds of tiny 

white flowers in summer. Due to its 

gentle and airy look the crop is commonly 

referred to as ‘baby's breath’. 

Thanks to the outstanding 

performance of modern varieties, 

Gypsophila is an important crop 

for growers, wholesalers and florists 

alike. It is impossible to imagine 

contemporary floral designs and 

bouquets without this marvellous 

flower. 

Key issues 

The Ciopora Crop Section 

Gypsophila represents six companies 

from the Netherlands, Israel, 

by Ingrid Slangen 

Gypsophila flowers (Photo credits: Selecta Klemm). 

Japan, Spain/Germany and the 

USA/Colombia that are active in 

breeding and worldwide distribution 

of Gypsophila varieties. They 

decided to join forces to discuss 

and handle the topics of common 

interest. Since the foundation of 

the group a year ago, four meetings 

have been held in France, Colombia 

and in the Netherlands, which 

shows the need within the industry 

to exchange ideas and to discuss 

key issues, such as the tremendous 

increase of PBR fees in Ecuador or 

the illegal propagation of Gypsophila 

varieties in different countries. 

Genetic database 

As its first major project, the group 

decided to set up a genetic database 

for Gypsophila varieties. The core 

purpose of such a database is to 

have a tool to identify varieties and 

thus to stop illegal production and 

propagation of varieties owned or 

sold by the group members. Five 

of the six group members will 

participate in the project and are 

ready to hand in their varieties to be 

analysed. After a detailed discussion 

within the group, members chose 

the Dutch institute Naktuinbouw 

to carry out the genetic analysis. 


Crop Section Fruit offers members 

many benefits 

The Crop Section Fruit has grown 

substantially over the past years; 

it now covers many countries 

worldwide, which makes the 

Section a valuable source of 

information for its members. 

During the last meeting of the 

Section in March 2014 in The 

Hague, some final questions 

were discussed together with a 

representative of Naktuinbouw, 

and the project can soon be 

given the go-ahead. The set-up 

of the DNA database is definitely 

a significant milestone 

for the breeders and distributors 

of Gypsophila varieties, 

but there will certainly follow 

further valuable discussions 

and important projects useful 

for the group and the whole 

flower industry. 

For more information on 

the work of the Crop Section 

Gypsophila please contact 

the CIOPORA Office. ||| 


Ingrid Slangen has been 

working for Selecta Klemm 

since 2005. As the head of the 

department “IP and Marketing” 

she is responsible for all 

questions around Intellectual 

Property and together with 

her team she takes care of 

the worldwide protection and 

licensing of a wide range of 

Selecta’s bed and balcony 

varieties, poinsettias and 

cut flowers as well as of 

trademarks and patents. 

Ingrid is the Chairwoman and 

the founder of the CIOPORA 

Crop Section Gypsophila. 

A major topic within the CIOPORA 

Crop Section Fruit is the enforcement 

of Plant Variety Rights 

(PVRs). Depending on a crop, this 

can take on many different forms. 

Grape breeders, for example, face a 

lot of problems due to illegal propagation, 

so they are very proactive in 

tracking down the illegal plants and 

grapes in a multitude of countries. 

Not only have they shared their 

experiences with different enforcement 

procedures within the Fruit 

Section, they are now also taking 

it a step further by developing a 

platform for information sharing in 

order to facilitate the identification 

of infringements on each other’s 

varieties. 

Variety identification 

A quick and sufficient variety identification 

is a major challenge for all 

fruit crops, since comparative trials 

may take many years. So there is a 

keen interest amongst the members 

to develop protocols that allow 

identification by DNA analysis, 

not only in view of enforcement of 

Plant Variety Rights, but also to 

by An Van den Putte 

Photo credits: Better3Fruit. 

identify essentially derived varieties, 

i.e. mutants. 

By developing a joint protocol that 

is agreed upon by many breeders, 

we hope to increase the credibility 

of these techniques. The berry 

bree ders, for example, are currently 

running a pilot project, which will 

be extended to other crops in due 

course. A valuable addition in this 

respect is the experience of the ornamental 

breeders within CIOPORA, 

as well as the work done by the 

CIOPORA Working Group 

Molecular Techniques. 

Knowledge sharing 

Apart from these concrete joint 

projects, the Crop Section Fruit also 

provides its members with more 

informal benefits. The members, 

even though they are competitors, 

are eager to share their knowledge 

and experience in obtaining and 

maintaining IP rights. This can 

be about the practicalities of DUS 

trials, quarantine restrictions, issues 

with novelty and denominations, 

finding a local contact or attorney, 

trademarks and the do’s and don’ts 

of licensing. 

UPOV 

CIOPORA not only lobbies for 

improved and stronger IP rights, 

but also focuses on improving the 

implementation of the current PVR 

regulations. 

Thanks to CIOPORA’s observer 

status in UPOV, a representative of 

the CIOPORA Crop Section Fruit 

can attend the UPOV and CPVO 

technical meetings concerning fruit. 

This means that the voice of the 

breeders is being heard on concrete 

issues, such as cost of the DUS 

examination, sanitary requirements 

for the samples supplied, revision of 

technical protocols and guidelines, 

and many others topics. 

Since the members demonstrated a 

growing interest in increasing the 

activities of the Crop Section Fruit, 

the Section will now, in addition 

to the regular meeting during 

the CIOPORA AGM Week, also 

convene during the Fruit Logistica 

trade show in Berlin. Companies 

who are considering membership 

in CIOPORA are welcome to attend 

this meeting (feel free to contact the 

CIOPORA Office for details). ||| 


An Van den Putte started working for 

Better3fruit in 2003 as a researcher; 

soon thereafter she took up the 

position of Intellectual Property 

manager. An handles the worldwide 

protection of Better3fruit’s apple and 

pear varieties through Plant Variety 

Rights, Patents and Trademarks. Her 

responsibilities also include enabling 

worldwide testing and supporting 

Better3fruit’s licensees. She is chair 

of the CIOPORA Crop Section Fruit. 

>>> 


Voices of the industry 

Tackling the thorny issues 

The International Rose Breeders 

Association (IRBA) was founded 

in October 1989. It will celebrate 

its silver jubilee at the 2014 IFTF 

show, which will be held from 

November 5 to 7 in Vijfhuizen, 

the Netherlands. 

IRBA currently has 15 active 

member breeders of cut-roses. As 

the association had been working 

closely with CIOPORA regarding 

many PBR cut rose issues, it was 

decided at the IRBA meeting in 

Nice 2005, to join Ciopora as a crop 

section which today is known as the 

CIOPORA Crop Section Cut Rose. 

This ‘joint venture’ has strengthened 

the ties between both organisations, 

resulting in a more productive collaboration 

on important PBR issues. 

Ecuador 

There are different key PBR issues 

affecting the rose industry. Ecuador, 

for example, has become 

a problem for breeders; especially 

regarding their annual maintenance 

fees for PBR titles. 

The country has been imposing the 

highest fees for the registration and 

maintenance of PBR of any of the 

main rose exporting countries. By 

teaming up with CIOPORA, IRBA 

has pointed out the negative impact 

on breeders and growers alike. 

IRBA and CIOPORA have continuously 

emphasised that the discounts 

of the PBR fees offered by the Ecuadorian 

government to the breeders 

by Omer Schneider 

with breeding programs in Ecuador 

do not cure the violation of Article 

3.1 of the TRIPS Agreement. IRBA’s 

concerns have also been presented to 

the EU. Following the IRBA meeting 

in The Hague, the Netherlands, 

the Ecuadorian government published 

a discount structure for fees 

that is outlined in this same issue 

by Ciopora and IRBA member, 

Mr. Dean Rule. Page 44. 

Although Ecuador is a very important 

market for many cut rose 

breeders, there is a general consensus 

that within Ecuador most breeders 

might restrict availability of certain 

niche market varieties that have 

been an important part of the mix 

of Ecuadorian growers. At the same 

time, many breeders are committed 

to continue working with the 

excellent and honest growers in the 

country who have been actively 

promoting new varieties, while at 

the same time working to stop shipments 

from illegal farms at entry 

points in export markets. 

Russia 

Russia is also a quite problematic 

market for cut roses. Even though 

the rose is the No. 1 flower in Russia, 

only 15% of the cut roses on the 

market are produced locally. There 

are approximately 200 hectares of 

cut rose production – most, if not 

all, illegal. The current expansion 

is estimated at 63 hectares, 30 of 

which might be illegal. 

In order to get some protection, 

breeders must register their varieties 

with Gossortkom, the National 

Plant Variety Protection Office, 

with the objective of striving for 

PBR and additionally obtaining 

trademark protection. Russia has 

acceded to the 1991 Act of the 

UPOV Convention, but still needs 

to establish mechanisms for market 

monitoring and control of alleged 

illegal growers. IRBA and CIOPORA 

have a joint venture in place and 

are working with a law firm in 

Russia to address key issues. 

The pertinent question is how 

to implement an improved PBR 

protection system. 

Rosa ‘Paloma’ 

by Rosen Tantau 

(Photo credits: 

Rosen Tantau). 

Kenya 

Recently, the Kenya Flower Council (KFC) 

has introduced a Code of Conduct regarding 

breeders. IRBA has been working with KFC to 

ensure that the code is not restrictive for the cut 

rose breeders. Since breeders can’t always be present 

at the meetings, the association assigned two 

breeder associates in Kenya to represent IRBA 

during important KFC meetings and to report 

back to IRBA. No decisions were to be made 

without IRBA’s approval. By the end of March 

2014 the code KS 1758-2004 was finalised and 

approved by IRBA, and a copy was submitted to 

the IRBA members and CIOPORA. 

Mexico 

IRBA member and President of CIOPORA, 

Andrea Mansuino, had recently visited Mexico. 

He reported on cut rose production and advised 

that most of the production there was illegal. 

Though there is a PBR law in place, Mexico has 

not been successful with its implementation. 

Most of the production is for local consumption. 

However, there appears to be some export activity 

developing. 

It was agreed that CIOPORA and IRBA should 

develop a joint action plan to address the issues in 

Mexico to better protect PBR on cut rose varieties. 

Other countries that are continuously monitored 

regarding PBR development are Brazil, China, 

Ethiopia, and a number of others with emerging 

floriculture activities. ||| 


For the past 18 years, Mr. Omer Schneider has been chairing the 

International Rose Breeders Association (IRBA), which has become the 

CIOPORA Crop Section Cut Rose IRBA. He is past President of CIOPORA 

(1996-1999) and had been on the Board of the association for 21 years. He is 

also past President of AARA (All American Rose Selection). Mr. Schneider 

has acquired his extensive expertise in the area of rose breeding and 

marketing at Jackson & Perkins Co/Bear Creek Corporation, where he 

worked for 36 years, including a decade in role of Sr. Vice President. 


Profile 

Ciopora Chronicle 

sat down with Ms. 

Maxine J. Horn, the 

founder and CEO of 

Creative Barcode, 

to talk about IP 

Protection in the 

digital age. 

IP Solutions for the 

Future: Creative Barcode 

by Anna Kaehne 

Imagine how different our world 

would be if the ancient scholars 

worked and created under the 

circumstances of the digital age. 

This would be a world, where 

Pythagoras blogs on a regular basis, 

Aristotle hopes for more clicks for 

his explanatory metaphysics videos 

on Youchimney.com, and Diogenes 

of Sinope seeks to organise flash 

mobs via posts on Buzz-from-thebarrel.com. 

Their work and ideas 

are re-posted and re-tweeted, their 

names and their authorship become 

lost and forgotten in the jungle of 

the digital space. Would the accessibility 

and the fast-paced character 

of the knowledge created and 

shared by these scholars change our 

perception of their value? Would 

the numerous re-posts without 

attribution lead to devaluation of 

the original and the oblivion of 

their names? And finally: could the 

negligence towards the authorship 

fundamentally change our cultural 

history? 

In search for answers the Ciopora 

Chronicle talked to Ms. Maxine J. 

Horn – the expert in questions of 

Intellectual Property Protection, 

the founder of British Design 

Innovation and Innovation Bank, 

and the visionary behind Creative 

Barcode – the main subject of our 

talk. 

Maxine, thank you very much 

for talking to CIOPORA. 

Could you explain the role of 

authorship in our culture and 

how the omnipresence of the 

internet with its informational 

overload influences the 

public perception of this 

concept? 

“I believe the traditional role of 

authorship and man-made creation 

has not changed a great deal in 

centuries irrespective of the greater 

access to knowledge and new 

technologies that today influence 

Maxine J. Horn, the founder and CEO of Creative Barcode. 

and expand a creator’s opportunity. 

As such, the internet plays a 

positive role in enabling access to 

knowledge and creative content for 

everyone. 

However, in a rush to build an omnipotent 

presence, the lead Internet 

pioneers, such as the global search 

engines, have created their commercial 

model based on presenting 

everyone else’s digitised work as free 

to access, free to view and free to 

download and use without permission 

or remuneration. I can see how 

that works for them! 

In general, the public would not 

question the concept of free access 

to information & digitised product 

such as music and film, for example. 

And unless they are advised 

otherwise, or technology prevents 

them from deliberate or inadvertent 

illegal download, they will assume 

it is fine to carry on, as no one 

can track the crime or due to the 

general lack of understanding that 

it is a crime in the first place.” 

In your recent article on 

CreativeBarcode.com you 

compare the internet to the 

Wild West. Could you explain 

the nature of this metaphor 

in relation to Intellectual 

Property? 

“At a recent business event, when 

the young marketing manager of an 

Arts Centre asked what I did, I said 

I had developed a new intellectual 

property system for copyright in the 

digital age. The alarming response 

was: “I thought the internet had got 

rid of copyright!” 

Whilst there remain laws in place 

to deal with theft and counterfeiting, 

when it comes to the Internet 

illegal downloads of commercial 

photography, illustration, music, 

film, design, there are no widely 

cited laws that the average consumer 


instantly recognises, understands 

and abides by. 

Therefore, the consumer response 

is lawlessness. It’s almost as though 

the shop-keeper has left the store 

wide open, with no barcodes or 

prices on the products and no 

cameras or signage advising that 

products may not be taken without 

permission or payment. 

Even if a store was left unattended, 

some people would walk on by as 

they would understand that taking 

products without payment was 

‘shop-lifting’ and that it was illegal. 

But when it comes to the download 

of digital product from the Internet 

the general public perception is that 

digital equals fast and free.” 

In 2010, you launched 

Creative Barcode (CB). 

Could you tell us about 

the core idea behind this 

project and its purpose? 

“Initially, the focus and purpose 

was to assist designers and brand 

owners to reduce their risks and 

vulnerabilities when seeking to 

collaborate whether through open 

innovation challenges, business 

pitching, co-creation or any other 

concept disclosure activity. 

In 2012, we expanded the barcode 

system to include Rights Reserved 

and Permitted Use tags for use by 

creators to embed in completed 

works displayed online and to principally 

communicate to an Internet 

user the details of the owner and 

their usage terms. 

More recently (2014), we have 

over-hauled Creative Barcode to 

make the tags discreet and with an 

aesthetically improved design and 

easier user interfaces.” 

Creative Barcode Logo. 

By scanning the QR code or following the link on the IP tag the recipient can immediately access the information about the creator. 

The update of this information can be undertaken by every creator anytime in his/her Creative Barcode online account 

(Photo credits: Creative Barcode 2014). 

Could you define the major 

problems you set out to solve 

by means of CB? 

“Having founded and run British 

Design Innovation for 17 years 

(1993 to 2010) I was well aware 

of the difficulties encountered by 

designers and innovators when 

seeking to obtain fair and fast Non- 

Disclosure Agreements (NDA) 

from corporations. 

Within the corporations those 

responsible for engaging external 

parties in their product, service and 

brand development work or open 

innovation activities generally sat in 

Marketing, R & D or Innovation 

departments at middle-management 

level. Design and Innovation 

is time sensitive and thereby the 

process of engaging two sets of 

lawyers and a detailed NDA just 

to open up a safe conversation was 

akin to taking a sledge hammer to 

crack a nut. 

Many creators who submitted ideas 

and concepts to brand owners in 

competition with competitors including 

the brand’s in-house team, 

often found that, whilst told they 

had not been successful in winning 

a contract, saw a very similar 

concept come to market within 

12 months launched by the brand 

they had pitched to. Naturally 

this caused suspicion, angst and 

distrust. And those that challenged 

the brand owner often discovered 

that the IP legal system could do 

very little for them as ideas were 

not protected and a lack of any 

form of agreement in place by and 

large would result in a drawn-out 

David versus Goliath legal battle 

and a substantial legal bill with no 

guaranteed outcome in their favour. 

We developed the original Creative 

Barcode system to overcome these 

problems.” 

What makes CB unique 

among the other systems 

of IP protection? 

“We have removed the complexity 

and reduced the vulnerability when 

engaging with third parties and 

enabled safe-conversations to take 

place at early concept stage. We put 

ethics and trust at the heart of the 

solution. 

When it comes to completed 

works displayed online, IP Tags are 

visible and the technology creates 

a unique URL embedded in the 

tag that leads through to the Meta 

Data such as creation date, creator’s 

>>> 


Profile 

contact details, usage terms, source 

credit, basic licensing, etc. – all 

written in simple laymen’s terms. 

IP Tags give the internet user 

instant access to clear and useful 

information. In that regard it is 

easier to understand IP Rights and 

more useful than “©copyright. All 

rights reserved”. 

Uniquely, if an IP Tag has been 

applied to 1000 files or applied to 

just one photograph distributed 

across 100’s of publications and 

portals, should the IP Tagged item 

or concept be sold outright or the 

creator’s address details change, the 

Creator simply updates the IP Tag 

Meta Data once and it simultaneously 

and instantly updates every 

single file or image the IP Tag is 

applied to worldwide. 

NDAs aside, it is also the only early 

stage IP safe-disclosure system in 

place that forms a legally binding 

Trust Agreement.” 

Who can make use of CB and 

what can be protected by it? 

“Anyone with concepts or confidential 

information to disclose or 

completed works displayed online 

and in social media. Whether an 

individual, entrepreneur, creative 

firm, micro start-up, SME, corporation, 

institution or student – 

Creative Barcode is their minimum 

positive IP system or the first step 

IP registration to support a business 

in safe-disclosure of information 

before there are ready and eligible to 

apply for a patent, register a design 

or apply for a trademark. 

The majority of creators and all 

types of business do not realise that, 

with the exception of the USA and 

China, there is no formal Copyright 

registration at national level. 

Yet unregistered Copyright, whilst 

free and automatic, is harder to 

enforce, especially in the circumstances 

of the digital age 

Therefore, although UK-based, 

international Creative Barcode has 

stepped into that gap. The Creative 

Barcode system is available to all 

creators and businesses worldwide 

and is endorsed by the World 

Intellectual Property Organisation 

(WIPO).” 

What forms the legal basis of 

protection under the CB and 

what types of IP tags does CB 

offer? 

“The CB system offers four types 

of IP Tag with differing Meta Data 

fields relevant to projects in development 

(Blue), completed work 

with rights reserved such as a final 

design image or photograph (red) , 

completed work with permitted use 

such as articles or coding (green) 

and a company IP Tag that simply 

denotes your commitment to ethical 

IP practice (black). Each tag is 

created in landscape and portrait 

versions and in print, digital and 

thumbnail formats to suit a user’s 

implementation requirements. 

The legal basis of the safe-disclosure 

system is through the file transfer 

service and acceptance of the Trust 

Charter Agreement, which forms 

the terms of engagement between 

those disclosing and those receiving 

concepts and business propositions. 

The send, receive and download 

transactions are recorded by the 

data base where users have access 

directly to their own data logs. 

If ever needed, these can be used 

as a support to an evidence base. 

In the instance of completed work 

displayed online with an IP Tag, it 

is the creators/owners who state in 

the Meta Data, whether the item 

is free to use with a source credit 

or available for license. The creator 

is directly contactable to discuss 

and agree terms along with, as 

applicable, their nominated agent 

or lawyer. 

Creative Barcode does not get 

involved in the deal making or the 

terms – we just make it easier and 

efficient for parties to agree terms 

faster with the added comfort that 

CB is an open and ethical third 

party witness who the work is 

registered with.” 

The IP Tags are 

available in 6 

different sizes in 

landscape and 

portrait formats 

for use in print; 

on digital and in 

thumbnail images 



2014). 

Imagine I am a freelance 

designer, who often provides 

pitches to contractors, and I 

am seeking protection for my 

ideas and creations. What is 

the procedure for obtaining 

CB and what comprises 

the technical side of its 

application to my creations? 

“It’s really easy. The designer 

would register for CB-Innovation 

membership. They would create 

their IP Tag simply by selecting a 

Blue project tag (see example from 

CB member Mellor&Scott). The 

designer completes the Meta Data 

fields such as title of the project and 

Creators names and source credits. 

Other fields are automatically 

populated such as the member’s 

address details and some are 

assigned automatically by the 

CB database such as creation date, 

ID number and unique URL. 

The user has very little to do as 

the system has been engineered to 

do all of the work for them and to 

create and output the IP Tag as a 

graphic. The IP Tag can then be 

inserted into an image using the 

CB image editor or the designer can 

opt to use their own image editing 

software. The IP Tag is copied and 

pasted into every document or 

PDF and other correspondence the 

designer is disclosing to the third 

party client. 

Files are sent through the file transfer 

service to gain acceptance of the 

Trust Charter before file download 

commences.” 

From the CB website, the 

users learn that the CB trust 

charter has never been 

breached. Do you have an 

explanation for this success 

story? What does CB do 

differently from the other 

systems of protection? 

“It’s all in the simplicity. It’s easier 

to uphold the Trust Charter than 

it is to breach it. And it’s balanced 

where both parties give each other 

one legal warranty. 

“If the creators’ concept was used 

without written permission there 

is no loop hole. They either had 

permission or they didn’t.” 


Now, let’s say, the CB trust 

charter has been breached. 

What are the enforcement 

options? 

“The first option is for the Creator 

to confirm their IP membership of 

Creative Barcode and remind the 

party in breach of the terms of the 

Trust Charter supported by WIPO. 

In the few instances where trouble 

has flared up and a breach appears 

likely to occur, simply drawing CB, 

the Trust Charter and WIPO to 

their attention has shut the trouble 

down and averted a breach. 

However, if the party continued 

down the wrong path the next 

course of action would be to contact 

the WIPO mediation department 

who would send an intervention 

letter free of charge. 

If that does not resolve the matter, 

the parties are obligated to enter 

into a WIPO mediation (costs are a 

fixed fee, discounted by 50% to CB 

members and to a ceiling cost of 

£4,000 shared between the parties) 

Enforcement issues and costs have 

always been a problem for individuals 

and small firms – David and 

Goliath syndrome – but Creative 

Barcode substantially levels the 

playing field. No longer is the 

smaller player on their own, instead 

they have Creative Barcode and 

WIPO at their shoulder.” 

Maxine, thank you for telling 

CIOPORA about Creative 

Barcode. Our last question is 

of a more general character. 

What is, from your point of 

view, the major challenge 

for IP of our times, and what 

can be done to raise the 

awareness of the general 

public towards intellectual 

property and its value for the 

society? 

“I think, in part you highlighted 

this in your introduction. If the 

legacy of the digital age is ‘Creator 

unknown’ (Orphan Works) and 

endless inaccurate attributions 

where a source credit simply states 

the online publication/portal where 

the user discovered the work or the 

search engine that returned the 

work e.g. Google Images or simply 

‘the internet’ then not only will a 

Creators livelihood and creative and 

innovation journey be eroded, but 

over time so will the creative and 

cultural history of nations. 

Tim Berners-Lee created the www 

and his non-commercial offering of 

it to the World was given to enable 

access to and sharing of knowledge 

and to build upon the work of others 

to advance innovation. It wasn’t 

given to deny Creators a livelihood, 

misattribute their work or erode 

society’s knowledge of the Original 

Source. 

The 12 th century theologian and 

author John of Salisbury is credited 

with the first use of the term ‘standing 

on the shoulders of giants’ in his 

essay on logic titled Metalogicon. 

But best-known for the use of the 

phrase is perhaps Sir Isaac Newton 

who in his letter to Robert Hooke 

in 1676 stated: 

"What Descartes did was a good 

step. You have added much several 

ways, and especially in taking the 

colours of thin plates into philosophical 

consideration. If I have 

seen a little further, it is by standing 

on the shoulders of giants." 

In modern day terms, the phase is 

often used in innovation to mean 

using the achievements and understanding 

gained by major thinkers 

who have gone before and building 

upon their work in order to make 

intellectual, technological and innovation 

progress. 

So ironically, one of the biggest 

challenges for IP in our times is 

to stop the erosion of the original 

source and to do that requires 

collective action and collective 

responsibility. 

IP Cartoons a 

collaborative work 

by Maxine Horn 

and Cartoonist 

Roger Penwill. 

First, Creators must take the time 

and the responsibility for marking 

their work before publishing it 

online. 

Publishers should insist that works 

submitted contain a unique identifier 

such as a Creative Barcode IP 

Tag, a Creative Commons license 

or the Creators own marque, name 

and usage terms. 

Finally, a positive communication 

programme could be supported by 

national governments seeking to 

educate consumers in consumer 

friendly language and preserve 

original source and therefore 

creative and cultural history. 

I think it would be counter-productive 

for Governments and Internet 

Service Providers to create just a 

retribution process rather than 

create a reward based system for 

doing the right thing through 

loyalty-type schemes. 

Creative Barcode has created a 

system and process to assist in 

preserving Original Source but 

now the horse needs to drink.” ||| 


Anna Kaehne is a Manager Public Relations & Communications 

at CIOPORA. She is responsible for association’s internal and external 

communications including the relations with press, production of media 

and marketing materials offline as well as online. She is the person behind 

the CIOPORA Chronicle, association’s newsletter, press releases, website 

and other communication projects. 

Anna holds a Magister Degree in 

English and Slavic Studies from 

the University of Magdeburg, 

Germany. In her homeland 

– Ukraine – she studied International 

Law at the National Law 

Academy of Ukraine in Kharkov. 


Intellectual Property 

In today’s global 

market, protecting 

the trademarks of 

ornamental and fruit 

varieties online has 

become increasingly 

important. 

Combatting online 

trademark infringement in 

ornamental and fruit varieties 

Breeders face what may appear to be a daunting task of protecting their trademarks online (Photo credits: Morguefile.de). 

by Lucas S. Michels 

The internet has arguably 

become the main channel 

for consumer advertising 

and retail sales, and knowing how 

to protect your trademarks online, 

whether through hosted portals 

such as Google or Amazon, or 

independently through user-owned 

sites, has become essential to 

managing global brands. 

Many challenges 

Yet, online trademark protection 

poses many challenges as many 

major online ad and retail portals 

have their own policing and 

enforcement limitations, often 

requiring brand owners to conduct 

their own trademark enforcement 

activities, know the particular 

intricacies of each portal’s enforcement 

system, and seek litigation in 

certain instances. The recent U.K. 

trademark case Cosmetic Warriors 

Ltd. v Amazon.co.uk Ltd. [2014] 

EWHC 181 (Ch) highlights this 

point as although the cosmetic producer 

Lush was able to successfully 

prevent online retailer Amazon 

from buying Google AdWords of 

Lush’s trademark-protected brand 

name, it required Lush to seek 

enforcement of their brand through 

multiple measures in order to 

do so. 

Names being misused 

Unfortunately, ornamental and 

fruit variety breeders too are increasingly 

required to find efficient 

and effective methods to prevent 

their trademarks from being 

misused or misappropriated online. 

In our practice, we see such names 

being misused online much like 

any other product names, e.g., with 

fruit-flavoured tobacco and alcohol 

products using protected fruit 

trademarks without authorisation. 

Such misuse not only causes public 

confusion as to a breeder’s relationship 

to the infringing products, but 

as shown, can create an unintended 

relationship between breeder’s 

registered trademarks and products 

or services that have unfavourable 

social perceptions. Unsurprisingly, 

this may tarnish perceptions and 

goodwill consumers have towards 

a particular trademark-protected 

variety name and its owner. 

So what can breeders do to protect 

their trademarks without resorting 

to costly litigation? The answer is 

three-fold as it requires obtaining 

trademark protection, monitoring 


infringing activities, and enforcing 

rights against online infringers. 

Trademark registration 

In order to adequately protect the 

trademark of a plant variety online, a 

breeder needs to first obtain trademark 

protection. This requires registering the 

name as a trademark in the countries 

where the breeder wishes to conduct 

business, and ideally, where major online 

advertisement and retail websites 

will be hosted. For example, our firm 

recently assisted a Canada-based fruit 

breeder in registering a trademark for 

their new apple variety in the U.S. 

Although the U.S. registration was 

intended to grant the breeder U.S. 

protections in their mark, the U.S. 

registration actually gave the breeder 

the ability to enforce the trademark 

against a number of online infringers 

on many of the world’s major online ad 

and social media websites. As many of 

the world’s major online ad and social 

media platforms including Google, 

Bing, Yahoo!, Facebook and Twitter 

are U.S.-based, any breeder wishing 

to protect their varietal names on such 

U.S.-based sites may want to consider a 

U.S. trademark registration. However, 

as such U.S.-based platforms also 

have foreign versions of their websites, 

a breeder may need to still consider 

registering a trademark in the country 

where the foreign version of the U.S.- 

based website is focused: e.g. a Japanese 

trademark to enforce trademark rights 

on Google Japan. 

Monitoring 

Next, breeders need to monitor 

infringing online activities. Cost 

conscious breeders can self-monitor, 

and free reporting mechanisms such 

as Google Alerts give breeders readily 

available tools to monitor such online 

activities. Yet, self-monitoring can be 

incomprehensive and time consuming. 

Fortunately, companies such as 

Coresearch, CSC, and CompuMark, 

to name a few, provide helpful monitoring 

services. 

Enforcement 

Lastly, breeders need to enforce their 

rights in their marks against online 

infringers. Fortunately, there are 

several enforcement measures that do 

not necessarily require an attorney to 

perform. Yet, breeders should tread 

cautiously as they have an escalating 

effect. Advertising portals and 

social media sites, such as Google, 

Facebook and Twitter have online 

complaint reporting systems that 

allow trademark owners or their 

agents to submit complaints against 

infringing activities on their sites. 

These reporting systems generally 

have similar complaint requirements, 

yet they differ as to their 

reputation for assistance with 

enforcement activities. For example, 

Bing sometimes requires submitting 

multiple complaints against an 

infringer in order for an infringing 

ad to be effectively removed. Google 

has consistently refused to remove 

ads that infringe U.S. trademark 

registrations that were registered 

based on secondary meaning – 

descriptive trademarks that can be 

registred after five years of substantial 

and continuously exclusive use 

in the U.S. market. The take away 

from these differences is to know 

how each reporting system works 

and adhere to their requirements to 

ensure effective enforcement. 

Qualified counsel 

It is important to note that if an 

infringing use of a trademark 

is being conducted through an 

infringer’s own website, or if one of 

the mentioned ad or social media 

sites refuses to take action against 

a reported infringement, a breeder 

may need to seek qualified counsel 

in the jurisdiction where the 

infringement occurs to assist them 

with enforcement activities. 

While breeders face what may 

appear to be a daunting task of 

protecting their trademarks online, 

learning and applying registration, 

monitoring and enforcement 

tools is essential for breeders to 

protect their brands and their 

investment. ||| 


Lucas S. Michels is an intellectual property and 

corporate law attorney at Ironmark Law Group, 

PLLC in Seattle, Washington, U.S.A. He is also the 

author of the cross-border and trade-related IP 

blog The IP Exporter (www.theipexporter.com). 



Over the past 

18 months, 

CIOPORA has been 

working on the 

development and 

adoption of its new 

position papers on 


protection for 

plant innovations. 

The update of the 

position papers, 

published in 2002 

as ‘CIOPORA 

Green Paper’, 

was a necessity 

arising from the 

rapidly changing 

conditions of the 

horticultural market, 

where a stronger 

IP protection for 

plant varieties 

is an important 

precondition 

and stimulus of 

the continuous 

innovation, stability 

and prosperity of the 

industry. Ciopora 

Chronicle sat down 

with the President 

of CIOPORA, 

Mr. Andrea 

Mansuino and the 

Secretary General 

of the association, 

Dr. Edgar Krieger to 

learn more about the 

adopted IP papers 

and the association’s 

plans for the future. 

by Ron van der Ploeg 

‘Mission FUTURE’: CIOPO 

During its last Annual 

General Meeting in The 

Hague in April, CIOPORA 

has discussed and approved 

position papers on several 

aspects of IP protection 

for plant varieties. Can you 

reveal some more details? 

Andrea Mansuino: “In fact the 

discussions about CIOPORA´s IP 

Position have been going on for 

years, as IP is the main focus of 

our organisation. Formally, the 

open debate started with our large 

IP Conference in Venlo in 2012, 

where several experts discussed the 

weaknesses of the current systems 

of IP protection for plants. Additionally, 

more and more members 

expressed concerns about ineffective 

protection for their innovations. We 

took this as a signal to review the 

CIOPORA Green Paper, published 

ten years ago, which, until now, 

comprised the compendium of the 

CIOPORA Positions on IP Protection 

for plants.” 

CIOPORA is an international 

association with members 

all over the globe, which 

may complicate the process 

of discussions of such 

complicated matters. How did 

you manage to involve your 

members in the development 

of the Position Papers? 

Edgar Krieger: “Right after the 

conference in Venlo, we began to 

discuss the matter in the CIOPORA 

Board and then started with the 

drafting of the first version of a 

master document. It soon turned 

out that the complete master document 

had become very comprehensive. 

In order to make it easier for 

the CIOPORA members to discuss 

and decide on the single topics, we 

divided it into eight ‘more digestible’ 

parts by splitting the document 

into chapters dealing with 

individual subjects, namely Scope 

of the Right, EDV, Minimum 

Distance, Breeders´ Exemption, Exhaustion, 

Patents, Ground-breaking 

Innovation, and, for various minor 

topics, a document called ‘Additional 

Requests’. 

Andrea Mansuino: “In fact it 

was our Secretary General who 

drafted the first version of the documents, 

which were then intensively 

discussed by the Board and shared 

with all members by various means. 

Believe me, reading and understanding 

dozens of pages of such 

complex legal stuff was a hard nut 

to crack for the Board, and we spent 

numerous hours on it. As a result 

of the discussions, we developed 

the so-called Board Proposals 1.0, 

which were then shared with the 

CIOPORA members, asking them 

for input. At the same time we had 

several discussions with groups of 

breeders in different countries about 

the Board Proposals. After having 

received many oral and written 

comments from the members, the 

Board developed the Board Proposals 

2.0, which were then circulated 

again among all the members and 

served as basis for the discussions in 

The Hague. Those discussions were 

organised in a very democratic way, 

first in smaller specific IP Workshops, 

and finally in the general 

debate with the whole audience.” 

Have all papers been 

approved by the AGM 

in The Hague? 

Andrea Mansuino: “As mentioned 

by our Secretary General, we had 

prepared eight papers. To approve 

eight complex position papers was 

an ambitious project, and from the 

beginning we had the intention not 

to rush through the documents, 

but to take the necessary time to 

deeply involve our members and 

to develop sound and broadly accepted 

positions. We had intensive 

and very fruitful discussions. The 

members were obviously satisfied 

with the debate and the entire process, 

and at the end four position 

papers, namely on Minimum Distance, 

Scope of the Right, Breeders´ 

Exemption and Exhaustion were 

Dr. Edgar Krieger 

Dr. Edgar Krieger is Secretary 

General of CIOPORA. He has 

extensive experience in the field 

of Intellectual Property Protection 

for plant innovation. He has been 

executing the position of Secretary 

General of CIOPORA since 2004. 

Previously, Dr. Krieger worked as 

a lawyer at an international law 

firm specialising in IP protection, 

and particularly in Plant Breeders' 

Rights, advising agricultural 

breeders in several hundred court 

cases up to the European Court of 

Justice. Dr. Krieger has completed 

his doctoral dissertation on the topic 

‘Farmers' Exemption in Germany’ at 

the Philipps University of Marburg. 

approved unanimously. We see 

this as a big achievement and as 

proof that we implemented a good 

procedure, particularly taking into 

consideration that we did not aim 


RA’s position papers on IP 

at easy compromise positions and 

did not ignore problematic topics, 

but have taken explicit decisions on 

them. This is of course much more 

difficult than to approve a “diplomatic” 

position which circumvents 

the real problems. 

In the end, time passed too quickly, 

so that we had to stop the discussions 

after more than eight hours. 

Another discussion, and possibly 

an approval of the remaining four 

position papers, shall take place 

at the next AGM in Tel Aviv in 

March 2015.” 

In fact, the titles of the papers 

indicate that you touched 

upon some hot, much debated 

topics. 

Edgar Krieger: “CIOPORA has 

more than 50 years history in lobbying 

for effective IP protection of 

plant breeders. It is well known that 

CIOPORA sees room for improvements 

with regard to the current 

level of IP protection for ornamental 

and fruit varieties. Therefore we 

have updated and will further update 

our positions in all areas where 

we have identified weaknesses and 

loopholes.” 

What are the key messages of 

the approved position papers? 

Edgar Krieger: “All four approved 

positions show the desire of the 

CIOPORA members to have a 

more effective protection for their 

innovations and to have clearer 

rules. For example, the paper on 

Minimum Distance, or, in the 

UPOV language: When is a variety 

considered to be clearly distinguishable 

or distinct from another variety? 

A sufficiently broad minimum 

distance between varieties is one 

of the most important requirements 

for effective PBR protection. 

Without a sufficient distance, the 

exclusive right of the holder of 

a protected variety is weakened. 

If PBR protection is granted for 

other, very similar varieties, these 

other varieties are considered to be 

clearly distinguishable from the 

protected variety, and thus fall out 

of the scope of the protection of this 

variety. If a breeder does not have 

exclusivity for his variety, he cannot 

grant exclusivity to his propagators 

or growers. The competitors of the 

propagators or growers can produce 

a very similar product. The result 

is overproduction combined with 

undercutting competition. 

In today´s reality, based on the 

UPOV 1991 Act, even a very 

small difference between two 

varieties makes the varieties clearly 

distinguishable in the eyes of the 

examination offices. Based on 

a pure botanical approach, all 

characteristics of a species are 

considered to be equally essential. 

In contrast to the UPOV 1978 Act, 

no differentiation is made anymore 

between characteristics important 

or unimportant for a variety. As a 

consequence, even a difference in 

one unimportant characteristic can 

make a variety clearly distinguishable 

from another variety in the 

eyes of the examination offices. 

CIOPORA requests to stop this 

trend and to re-establish rules 

that safeguard a sufficiently broad 

distance between varieties. Some 

of the key statements in the paper 

read that: 

• CIOPORA demands a sufficient 

minimum distance between 

varieties for an effective Plant 

Variety Right, 

• since new varieties are bred, 

selected and introduced mainly 

for commercial targets, the requirement 

‘clearly’ should be seen 

as a judgmental and evaluative 

requirement, and should not end 

in a simple search of a botanical 

difference, 

• the requirement ‘clearly distinguishable’ 

should be assessed on 

characteristics important for the 

crop concerned, 

• differences in only unimportant 

characteristics should not lead to 

a clearly distinguishable variety. 

Andrea Mansuino 

Andrea Mansuino is the President of CIOPORA. 

He has been active in horticultural business since 

1987 and is a fourth generation nurseryman, 

whose family has been in breeding of ornamentals 

for almost a century. Andrea Mansuino owns a 

nursery in Sanremo, which, beside the breeding 

and production of ornamentals and foliage, is 

involved in the production of energy from renewable 

resources. Andrea Mansuino is also a shareholder 

of the NIRP International, the Director of Research 

and Development at NIRP East Africa Ltd. and the 

President of the Confagricoltura Liguria. At the 

CIOPORA AGM 2014 in The Hague, Mr. Mansuino 

was re-elected as President of CIOPORA for the 

second term. 

In other words, in order to be 

clearly distinguishable, the distance 

between two varieties in regard to 

their important characteristics must 

be sufficiently broad. Particularly 

in regard to pseudo-qualitative 

characte ristics and quantitative 

characteristics, a difference of only 

one note in general should not be 

considered as a sufficiently broad 

distance. The decision should be 

made on a crop by crop basis. 

>>> 


CIOPORA 

Varieties with the same note in the UPOV testguideline 

for a given characteristic should not 

be considered to be clearly distinguishable with 

respect to that characteristic. The possibility to 

search for a difference in a subsequent growing 

trial, if such difference was not clear in the 

first, properly performed examination should be 

eliminated. 

The possibility of randomised ‘blind’ testing in 

case of doubts over the distinctness of a candidate 

variety should also be eliminated. In case of doubt 

over distinctness, the candidate variety cannot be 

considered to be clearly distinguishable from the 

reference variety. 

Andrea Mansuino: “I would like to add that we 

learned from our members that not in all species 

the situation is equally critical. In many cut-flower 

crops, e.g. the distances between varieties seem to 

be sufficient at the moment. However, the general 

UPOV rules, such as TGP 3 and TGP 9, which 

are applicable to all species, allow for very small 

distances in all crops. Taking this into consideration, 

we indeed aim at changing the general 

UPOV rules, but intend to ask for the concrete 

implementation of broader distances in critical 

crops, by amending the respective UPOV Test 

Guidelines first. Anyway, the key for success in 

this matter is to reach a common understanding 

between breeders and PBR offices, including the 

examiners, on the purpose of distinctness – that 

it is not only about a mere botanical assessment of 

varieties.” 

You also approved a Position on the 

Scope of the Right. What is its target? 

Edgar Krieger: “While the Position Paper on 

Minimum Distance targets the horizontal scope 

of protection, i.e. the relationship between 

breeders, the position on the Scope of the Right 

targets the vertical scope of protection, i.e. 

between breeders, propagators, growers and trade. 

First of all, CIOPORA requests from UPOV and its 

member countries to harmonize the definition of 

one of its key terms – propagating material. UPOV 

does not offer a definition of propagating material, 

and as a result, there are several different definitions 

of propagating material in the UPOV countries, 

so that one and the same material in one 

territory is considered to be propagating material, 

while it is harvested material in another. Propagating 

material should include any reproductive 

or vegetative material of a plant from which, 

whether alone or in combination with other parts 

or products of that or another plant, another plant 

with the same characteristics can be produced. A 

harmonised definition is key in a globalised world, 

because it causes confusion in the international 

trade if material changes its status depending on 

the legislation in different territories. Only material 

of a variety that is not capable, by any means, 

General session of the 2014 AGM – IP debate. 

of producing another plant with 

the same characteristics should be 

considered to be harvested material 

in the legal sense. 

In regard to harvested material – 

such as most fruits – and products 

that are directly obtained from material 

of a protected variety – such 

as juice – CIOPORA requests that 

these products should be protected 

per se, too. 

Andrea Mansuino: “Such clarification 

and extension of the protection 

is in the benefit of the entire 

production and trade chain. Clarity 

is a precondition to establish fair 

competition. Lack of clarity is used 

mainly by dishonest players, who 

benefit at the cost of the honest. 

We know that the licensees of our 

breeders want them to enforce 

their rights against infringers in a 

robust way, in order to establish a 

level playing field for all. Therefore, 

a sufficiently broad scope of 

protection, covering all products of 

a variety, is necessary. This will not, 

in general, change the situation for 

the licensees of the breeders, but 

only for the dishonest players. 

Additionally, we must face the fact 

that several countries in the world 

are still not willing to provide effective 

IP protection for plants, but 

nevertheless stimulate the production 

of horticultural products in 

their countries and the export of 

these products. This creates unfair 

competition among countries and 

their people and is contrary to the 

spirit of the WTO and the TRIPS 

agreement, according to which all 

countries should have access to the 

global trade and in return grant 

effective Intellectual Property 

protection. The current cascadesolution 

in the UPOV 1991 Act, 

which allows breeders to enforce 

their right on harvested material 

only under conditions and limitations, 

does not cure this situation 

and is not suitable for a globalised 

economy since it hampers the international 

exploitation of varieties.” 

Edgar Krieger: “By the way: in 

Patents all manifested products of 

an invention fall under the scope 

of the Patent. If a plant comprises a 

patented gene, the plant and all of 

its parts fall under the Patent as long 

as they contain the patented gene 

and the gene performs its function. 

For breeders it is hard to accept that 

they should not benefit from equally 

effective protection, too.” 

You have also re-shaped your 

position on the Breeders’ 

Exemption. The breeders’ 

exemption is seen by many 

people as one of the corner 

stones of the UPOV system. 

What changes does CIOPORA 

want to see? 

Edgar Krieger: “Indeed, the 

breeders´ exemption has been 

imbedded in the UPOV PBR system 

since its beginning and is a unique 

feature in IP protection systems. 

But what exactly is the breeders´ exemption? 

The breeders´ exemption 

as it stands today consists of two 

components: first, the free use of 

protected plant material for further 

breeding and, second, the – limited 

– commercialisation of the outcome 

of such breeding. I have already 

written in last year’s Chronicle that 

the current breeders´ exemption 

has a structural weakness. What 

CIOPORA, therefore, wants is not a 

change of the breeders´ exemption, 

but a rectification of its structural 

weakness. 

CIOPORA supports a breeders´ 

exemption that contains the use 

of commercialised plant material 

of protected varieties for further 

breeding. In regard to the second 

part of the exemption, CIOPORA 

requests that the commercialisation 


of any variety, which falls under the 

scope of a protected variety, shall 

require the authorisation of the 

title holder of the protected variety. 

The breeders´ exemption should 

therefore read: “The breeder’s right 

shall not extend to acts done for the 

purpose of breeding other varieties.” 

What does this mean in 

practice? 

Andrea Mansuino: “In practice 

this means that the breeders´ 

exemption should contain only the 

free use of protected material for 

further breeding, but no reference 

to the commercialisation of the new 

breeding product anymore. If 

a new variety which results from 

any kind of breeding (i.e. crossing 

and selection, mutating, genetic 

modification, etc.) falls under the 

scope of a protected variety (not 

only of the variety that has been 

used for breeding the new variety), 

it must not be commercialized 

without the authorisation of the 

title holder of the protected variety. 

The concept is similar to the 

‘breeders’ exemption’ in the new 

Unitary Patent in the EU or in the 

Patent law of Germany and France. 

In practice, this approach to the 

breeders´ exemption does not bring 

a change to the current situation, 

because already now EDVs, varieties 

not clearly distinguishable and 

varieties requiring repeated use are 

blocked from commercialisation. 

The major change for our crops lies 

in the broadening of the Minimum 

Distance and the clarification of the 

EDV concept.” 

Finally you have approved a 

paper on Exhaustion. What 

does exhaustion mean and 

what does CIOPORA want to 

change? 

Andrea Mansuino: “Exhaustion 

generally means that products, 

which have been marketed by the 

title-holder or with his consent, in 

the protected territory, fall in the 

public domain in this territory, so 

that the title-holder can exert his 

right to said products only once in 

this territory. However, the exhaustion 

provision in the UPOV 1991 

Act is broader than this. It covers 

not only acts concerning the plant 

material marketed by the titleholder 

or with his consent, but also 

acts concerning any material derived 

from said material. CIOPORA 

requests to limit the exhaustion 

in the UPOV system to the common 

scope of exhaustion in other 

IP laws, i.e. to exclude from the 

exhaustion the derived material, 

which we feel is unfair. In this regard 

the Position Paper on Exhaustion 

is a consequence of the Position 

on the Scope of the Right, which 

extends the protection to harvested 

material and processed material.” 

Edgar Krieger: “It is obvious and 

correlates to the exhaustion rules 

in other IP systems that the PBR 

in a territory in principle shall be 

exhausted for material, which has 

been marketed by the title holder 

or with his consent in the territory 

where the PBR is effective. As far 

as material is concerned that is produced 

from the material marketed 

by the title-holder or with his consent 

– let´s call it ‘produced material’ 

– the PBR should be exhausted 

only for produced material, if and 

to such extent that its production 

has been licensed, and provided 

that the produced material is not 

subsequently used for other propagation 

or multiplication. In the first 

instance it is a matter of the parties 

concerned (title-holder and licensee) 

to draft the scope of the license 

and to precisely describe the acts 

covered by the license. However, in 

that regard it can be assumed that, 

if e.g. the title-holder or his licensee 

sells apple trees to an apple grower 

without any specific agreement, the 

apple grower has been granted an 

unlimited implied license to produce 

and sell apples from these trees 

in the territory, where the PBR is 

valid. A cut-rose grower buying rose 

plants without a specific agreement 

has the implied right to produce 

cut-roses for the purpose of selling 

them – directly or via the trade 

chain – to end-consumers in the 

territory, where the PBR is valid. 

However, exhaustion of any PBR 

shall be strictly limited to the very 

territory where the PBR is in effect. 

The marketing of material in a 

protected territory shall trigger the 

exhaustion only for this very territory. 

Any import of said material or 

Dr. Jan de Riek moderates IP Workshop on EDV during the CIOPORA AGM 2014 

in The Hague. 

material produced from it into another 

territory, where a (parallel) PBR 

exists, requires a separate authorization 

(license) of the respective title-holder. 

CIOPORA is opposed to any form of 

international exhaustion.” 

It seems that CIOPORA has 

accomplished a big milestone 

at the AGM 2014. What will 

come next? 

Andrea Mansuino: “As we mentioned 

above, we still have to discuss and 

approve the positions on EDV and 

Patents, and to develop the concept 

of Ground-breaking Innovation. We 

will also have further analysis on the 

Additional Requests, including many 

aspects of the UPOV system which 

in our opinion should not be underestimated. 

We will do this in the same 

transparent and democratic manner 

as before, so that hopefully we end 

up with a comprehensive updated IP 

Position in March 2015.” 

Ciopora Chronicle: “Thank you for 

the interview. We wish CIOPORA 

good luck in its work on the further 

Position Papers. We shall be looking 

forward to hearing the CIOPORA news 

after the 2015 Annual General Meeting 

in Tel-Aviv.” ||| 


Ron van der Ploeg is the editor in 

chief of FloraCulture International. 


Fruits 

The range of fruits 

now available to 

consumers around 

the world is large 

and continually 

expanding. Fruits 

also vary in stage of 

market development, 

from novel to mature 

products. All major 

fruits, however, face 

common forces on 

both the demand 

and supply sides. 

(Photo credits: Better3Fruit). 

Preparing for future 

markets for major fruits 

World Fruit Complex, 

Large and Growing 

Table 1 shows both the growth 

and diversity of the world fruit 

complex over the last two decades. 

Between 1990-92 and 2010-12, 

world population grew by about 

30 percent. In all cases except 

grapes, world per capita supplies of 

fruit grew dramatically faster than 

world population. Production of 

major fruits, excluding melons and 

watermelons, jumped by over 22 

kilograms per capita. Growth was 

strong both in mainstream fruits 

like apples and pears, and in minor 

fruits, whether deciduous, citrus, 

tropical or berries or miscellaneous 

other fresh fruits. 

The growth in the size and diverby 

Dr. Desmond O'Rourke 

All the fruits will be affected 

by population shifts, income 

swings, changes in consumer 

preferences, retail developments, 

and public and private efforts to 

boost consumption for health reasons. 

On the supply side, all fruits 

must compete for access to suitable 

land, water, energy and labour. 

Fruit growers differ in how they 

seek to tackle these challenges. The 

rest of this article discusses some 

of the common challenges being 

faced, and the different approaches 

being taken. 

sity of world fruit production was 

stimulated by increasing affluence 

in both developed and developing 

countries. Consumers demanded 

more fruit choices twelve months a 

year. Large, chain retailers catered 

to these demands as they expanded 

around the world and enlarged 

their produce sections. Falling 

trade barriers and technological 

advances enabled fresh fruit to be 

delivered over long distances, and 

long periods, in excellent condition. 

However, it will be very difficult 

to slow growth in fruit production 

in the near future even if demand 

falters. Production has moved 

increasingly to more productive 

environments. It is now in the 

hands of well-capitalized, integrated 

firms that manage all the functions 

of production, packing, storage, 

processing and marketing, and 

need early and high production 

to justify their large investments. 

Market Opportunities 

Shifting 

The best opportunities for increased 

fresh fruit demand are shifting 

from the developed world to emerging 

markets. Developed countries 

face stagnant and aging populations 

and slow income growth. They 

have low propensity to increase purchases 

of mainstream fruits, but are 

more apt to purchase high-valued, 

novel fruits. Many have been pummelled 

by the Great Recession and 

the subsequent debt crises. Thus, 

there is little prospect that the total 

volume of fresh fruit demanded in 

the developed world will increase 

much in the decade ahead. 

In contrast, many emerging 

markets have rapidly growing 

populations, rising purchasing 

power, a growing middle class, a 

rapidly modernizing food retailing 

sector, and buoyant demand for 

many imported fruits. 

Consumer 

motivations 

Consumer motivations for buying 

different fresh fruits are becoming 

more complicated. Consumers 

want access to familiar products, 

but also occasionally yearn for 

something new or different. As 

product choice within individual 

fruits, and among fruit categories, 

has grown, it has been a challenge 

for food retailers to accommodate 

the desires of their customers for 

both novelty and continuity. 

Consumers still care about the 

intrinsic attributes of different 

fruits, but many are equally concerned 

about food safety, sustainability, 

status, and ephemeral 

concepts like fun or excitement. 


Table 1. World: Per Capita Supplies of Major Fruits and Fruit Categories, 1990-92, 2000-02 and 2010-12 (kilograms) 

Category/Fruit 1990-92 

(kg) 

2000-02 

(kg) 

2010-12 

(kg) 

Change 1990-92 to 

2010-12 (%) 

Apples 7.73 9.27 10.63 + 37.5 

Other Deciduous 6.06 7.76 9.70 + 60.1 

Total Deciduous 13.79 17.03 20.33 + 47.4 

Total Grapes 10.92 10.10 9.74 – 10.8 

Oranges 9.67 9.99 9.86 + 2.0 

Other Citrus 5.43 7.05 8.72 + 60.6 

Total Citrus 15.10 17.04 18.58 + 23.0 

Bananas 9.05 10.82 14.95 + 65.2 

Other Tropical 14.33 16.35 19.76 + 37.9 

Total Tropical 23.38 27.17 34.71 + 48.5 

All Berries 0.77 0.93 1.08 + 40.3 

All Other Fresh 2.94 3.95 4.58 + 55.8 

Total Fruits 66.90 76.22 89.02 + 33.1 

Source: UN, FAO, FAOSTAT database online. 

Future certain – 

heightened competition 

The trends in fruit supplies, 

marketing opportunities and 

consumer motivations mean that 

in the next ten years competition 

within the fruit category will become 

even more intense. There will be 

strong downward pressure on producer 

prices. Many firms will seek 

to survive by lowering unit costs, 

either through more efficient use 

of inputs, or through greater output 

per hectare. Unfortunately, increased 

yields will increase the risk of global 

supplies outrunning demand. 

Salvation through 

breeding advances 

Over the last two to three decades, 

many progressive fruit growers 

have sought to escape the downward 

price squeeze in commodity 

markets by differentiating their 

products through brands, 

marks of excellence, protected 

geographical indicators or other 

methods. However, the small price 

premiums earned have helped little 

when overall price levels sank. 

In contrast, the breeding of new 

varieties has brought significant 

gains in individual fruit categories. 

The development of seedless grapes 

and easy-peeler oranges has transformed 

those categories. In summer 

fruits, there has been a steady 

parade of new, named varieties. In 

the case of sweet cherries, the focus 

was on breeding earlier or later 

varieties to lengthen the season and 

avoid the dramatic price drops that 

used to occur during a single peak 

harvest. This effort has so far been 

only partially successful. 

Can apples be 

the exception? 

There is much optimism about 

the value of breeding new apple 

varieties. Varieties such as Jonagold, 

Elstar, Gala, Fuji and Braeburn 

earned large price premiums 

for several years. When those 

premiums eroded with increasing 

volumes, a consensus developed 

among the apple industry leaders 

that price premiums could be 

maintained for longer periods if 

the Intellectual Property of the 

new variety was tightly controlled, 

the number of trees planted and 

volume marketed was limited, and 

if the image of the new variety was 

protected through tight control of 

names, packaging and promotion. 

These are usually referred to as 

‘managed’ or ‘club’ varieties. 

(Photo credits: Better3Fruit). >>> 


Fruits 

Apple orchard. (Photo credits: Better3Fruit). 

When there were few club varieties, 

the club sponsors could select 

which individual producers, packers 

or marketing firms they wished to 

handle their variety. Often, licenses 

were granted to firms, producing 

districts and countries that were 

already highly competitive. The 

remaining producers, districts and 

countries, fearing that they would 

increasingly fall behind, agitated 

successfully for their own breeding 

programs that could develop new 

varieties suitable for local conditions. 

At the same time, the drive 

to breed winning new varieties 

has intensified in university and 

government research centres and in 

the private sector. 

The result of all this activity is 

that there are now many new club 

varieties competing to attract new 

members, a reversal of the past 

situation. 

Changing motivations 

for adopting new 

varieties 

In the past, the goal of many 

breeders was to find a new variety 

that could become a blockbuster 

like Gala or Fuji. However, the 

underlying principle of most club 

organizations, namely, maintaining 

price premiums through controlling 

volume, acts as a natural brake 

on extensive production. 

In the meantime, most integrated 

producer-packer-marketers have 

altered their expectations for new 

varieties. The large retailers that 

they serve want a diverse portfolio 

of apple varieties, including, twelvemonth 

supplies of major varieties 

like Golden Delicious, Gala or Pink 

Lady and access to one or more 

exclusive varieties so they can 

distinguish their apple offerings 

from those of competing retailers. 

What is a breeder to do? 

Given these changing conditions, 

breeders and sponsors of new apple 

varieties need to view their task as 

creating both a new product and 

a new business to handle that 

product. The new product must 

serve a specific need in the marketplace. 

It must be distinctive in 

physical attributes, in its name, the 

market segments it might appeal 

to, and the promotional support it 

receives. 

Breeders need to have clear targets 

for where in the market any new 

variety will fit. Has it mass market 

appeal? Can it appeal to a specific 

market segment? Could it be offered 

exclusively to selected retailers 

for limited periods? Since developed 

country markets are so crowded, is 

there greater potential in developing 

countries? Intensive market research 

to answer such questions should 

precede all breeding efforts. 

Sponsors of new varieties also need 

to have a clear business model they 

are pursuing, including guidelines 

about product, pricing, promotion, 

competition, market opportunities, 

potential breakeven point, and 

other aspects of the future business. 

They need to be able to offer the 

potential for significant profit to 

future club participants. 

Don’t forget 

the silent majority 

While innovation is important to 

every industry, it is vital to keep 

current mainstream varieties (what 

I call the ‘silent majority’) healthy. 

Even within the next decade less 

than 3 percent of the world apple 

production will be club varieties. 

Given the intense competition from 

so many other fruits and snacks, 

and weakening demand among the 

young, unless the silent majority 

can find a large promotional voice, 

the entire apple industry in the 

developed world could face further 

shrinkage. That fate can still be 

avoided. ||| 


After receiving a M.A. (1968) and PhD (1970) in agricultural economics at 

the University of California, Davis, Dr. O’Rourke was a faculty member in the 

Department of Agricultural Economics at Washington State University in 

Pullman for 30 years. He specialized in international marketing of fresh fruits. 

From 1985 to 2000, he also headed WSU’s IMPACT Center, a multidisciplinary 

program that introduced many new agricultural products, new technologies 

and new databases on trade issues. 

Dr. O’Rourke is the author of four books and numerous professional journal 

articles, bulletins, and popular reports. After retiring from Washington State 

University In May 2000, he became president of his own consulting firm, 

Belrose, Inc. which publishes a monthly newsletter, The World Apple Report 

and a number of annual reviews of various fruit crops. The most recent special 

study examined ‘Asian Import Demand for Apples, Pears, Sweet Cherries and 

Kiwifruit: Potential to 2020.’ He has been a consultant to many government 

agencies, industry organizations and large businesses around the world, and is 

a frequent speaker at international conferences. 

Dr. O’Rourke was a member of the Washington State Governor’s Council of 

Economic Advisors from 1993 to 2012, and a reviewer on the Biotechnology 

panel for the Washington Technology Centre for over a decade. He is the author 

of numerous professional journal articles and four books, including his 1967 

book Marketing in Ireland, which was the first Irish textbook on the subject. 


Company profile 

‘Think global, 

act local’ is a 

frequently used 

slogan. But what 

exactly does it 

imply? A perfect 

case study to 

explain the 

implementation 

of this idea is 

the Poinsettia 

business. Selecta 

Klemm reports. 

by Richard Petri 

Poinsettia is the quintessential 

Christmas plant. 

Selecta Klemm’s Poinsettia 

breeding is a world of regions 

Poinsettia is the quintessential 

Christmas plant. In 1828, 

the American ambassador to 

Mexico, Joel Poinsett, discovered 

this beautiful shrub growing along 

the roadside. He took some cuttings 

and planted them in his greenhouse 

in South Carolina. 

From that day on the plant found 

its way in the world. Poinsettia 

are used as decoration and as a 

gift item during the winter season 

around the world. The plant is also 

gaining more admirers in East 

Asian countries, where the Westernstyle 

Christmas celebrations are 

becoming increasingly popular. 

In Turkey and Egypt, Poinsettia 

have a long tradition with no 

reference to Christmas. 

Demands from growers 

and consumers 

The business of Poinsettia 

means meeting the demands of 

thousands of growers and millions 

of consumers all over the world. 

Selecta has been working for 

decades on varieties suited for 

different regions becoming one 

of the world’s leading Poinsettia 

breeders – which highlights Selecta’s 

success with this crop. The mother 

stock plants are selected, grown 

and maintained in East Africa from 

where the cuttings are transported 

easily and quickly to European 

destinations. 

The finished product, however, 

doesn’t withstand transportation 

logistics too easily, which stresses 

the importance of local rooting 

stations close to the market to keep 

logistic lines short and to ensure the 

best plant quality for consumers. 

Major challenge 

Poinsettia breeding itself is another 

challenge. Wouldn’t it be nice to 

have one universal variety covering 

all production requirements and 

regional demands? 

Apart from the environmental and 

climatic impact (i.e. day length), 

different production standards, 

multiple growing approaches and a 

plethora of trading channels require 

different Poinsettia varieties for 

different European markets. 

As red is still the most important 

colour of Poinsettia, Selecta is 

currently selling a wide range of 

different commercial red varieties in 

different colour shades. A very large 

portion of the portfolio is taken by 

Christmas Feelings® Red, one of the 

most successful Poinsettia varieties 

worldwide. Christmas Feelings® is 

definitely a Poinsettia superstar. It is 

a variety of great commercial value; 

they branch freely and are very 

vigorous and productive. 

Mediterranean versus 

Scandinavian markets 

But while this rather compact 

variety is so successful in Northern 

Europe, the Mediterranean 

consumers prefer plants with 

a different look. In sun-kissed 

countries, people are used to 

large Poinsettia plants, grown in 

voluminous pots and featuring big 

bracts. Selecta has been working 

tirelessly on breeding new varieties 

to meet these demands and found 

the answer in varieties such as ‘Noel’, 

Poinsettia growing. 

‘Happy Christmas’ or the new 

introduction – ‘Christmas Aurora’. 

Scandinavian growers, on the other 

hand, are specialised in minishaped 

plants. Easy packing is 

essential for the Danish Poinsettia 

industry. Selecta’s ‘Christmas 

Eve’ and ‘Christmas Beauty’ are 

excellent mini varieties, but again 

‘Christmas Feelings®’ has made its 

way into the Danish production 

with an increasing market share in 

the total Poinsettia production. 

As consumers are getting more 

concerned about the usage 

of chemicals in professional 

horticulture. Selecta has developed 

a new variety, ‘Christmas Glory’, 

that can be grown without any 

plant growth regulators. It can also 

be used for organic production due 

to its resistance against any disease 

or pest. 

This mini excursion into the 

European Poinsettia markets shows 

that breeding efforts will and 

should never stop. With changing 

requirements the challenges remain 

in Europe – a continent of regions, 

a continent of local solutions offered 

by Selecta. ||| 



Plant breeders 

protect their plant 

varieties by Plant 

Variety Rights, 

such as Community 

PVRs in the EU, 

and Plant Patents 

in the US. But can 

Patents serve as a 

suitable alternative 

in the UPOV member 

states, including 

the EU? The answer 

lies in a detailed 

analysis of the 

current practice in 

the area of Patents 

for plant related 

innovations. 

by Dr. Tom H. Wittop Koning 

Patents - a fruitful 

alternative for PVRs? 

Patens are historically intended 

for the fields of mechanics 

and chemistry, in particular 

for new products or methods to 

produce new or existing products. 

Patents are only granted for inventions 

of technical nature that are 

novel, inventive and are industrially 

applicable. Novelty is given when 

the subject matter of the invention 

is absolutely novel, i.e. not disclosed 

in any way anywhere in the world. 

This is in contrast to PVR, which 

can still be obtained when the 

variety has been commercialized for 

less than one year in the country of 

protection. An invention is considered 

as involving an inventive step 

if, in regard to the state of the art, it 

is not obvious to the skilled person. 

Industrial applicability is given 

when the invention can be made 

or used in any kind of industry, including 

agriculture. However, mere 

aesthetical creations are excluded 

from patentability, whereas PVRs 

focus on ornamental features that 

are mainly of aesthetical nature. 

Furthermore, plant varieties, as well 

as essentially biological processes 

for their production, are excluded 

from patentability. 

Are patents suitable 

for breeders? 

At first sight, it may therefore be 

difficult or even impossible to 

obtain a Patent for plants. However, 

the above patentability requirements 

can indeed be applied to 

plants, and for methods of obtaining 

thereof, as long as the plants 

encompass more than a single 

variety and comprise a new technical 

feature. Further, the claimed 

methods should not be essentially 

biological. The presence of a new 

technical feature can, for example 

be resistance to a certain plague, or 

the capacity of prolonged flowering. 

However, let us look further into 

the possible pitfalls for breeders 

when it comes to patenting. 

Sakura Cress ® (Photo credits: Koppert Cress). 

The breeders’ exemption 

The breeders’ exemption is one of 

the pillars of the PVR, embedded 

in the UPOV treaty. It guarantees 

the availability of protected plant 

varieties for further breeding. To 

those breeders, the exemption 

may be very attractive, but less so 

for breeders who develop varieties 

from scratch or from their own 

varieties. The Patent system does 

not provide for such exemption, at 

least not to such a broad extent. The 

EU directive 98/44/EC, which is 

implemented in all European jurisdictions, 

allows breeders to exploit 

a PVR in case the variety would be 

covered by a Patent. In that case, 

the breeder can apply for a compulsory 

license for non-exclusive use 

of the Patent. The patentee, in his 

turn, will be entitled to a crosslicense 

to use the plant variety. So 

there is no free use of plant varieties 

covered by a Patent. In some states, 

such as in the Netherlands, the 

Patent act is a bit more lenient 

towards breeders. Breeders may 

use patented biological material 

in order to develop and breed new 

varieties. However, once a variety 

is developed, the exemption is 

exhausted. A breeder cannot exploit 

a new plant variety without infringing 

the Patent and needs a compulsory 

license from the patentee. 

Whether such ‘broadening’ of the 

exemption confers any comfort to 

breeders is highly questionable, but 

at least a breeding act as such does 

not need licensing. 

Is patenting attractive 

for breeders? 

Yes, it may very well be. One of 

the major advantages is the absence 

of the breeders’ exemption 

strengthening the right of the 

patentee. Further, a Patent is 

directed to plants comprising a 

technical feature, meaning that 

not only a single variety, but any 

plant comprising the said technical 

feature will be protected. A Patent 

further offers the possibility to 

claim plant progeny, plant parts, 


such as seeds, flowers, leafs etc., as well 

as methods to produce such plants. 

Such a method is e.g. patentable when 

it comprises a microbiological step, and 

fulfills the novelty and inventive step 

requirements. For example, a method 

to introduce a particular gene into a 

plant conferring a new characteristic to 

the said plant is patentable. 

Is a non-essentially 

biological step a must 

to qualify for Patent? 

Although, as dictated by Art. 53(b) 

of the European Patent Convention 

and the corresponding national laws, 

essentially biological methods are not 

patentable, Patents have meanwhile 

been granted on plants displaying a 

technical effect, that are produced by 

conventional breeding techniques. 

A European Patent EP1290938 in 

the name of Taste of Nature has been 

granted for radish plants, obtainable 

by screening radish plants for their 

ability to produce sprouts having 

purple colouring, for selfing and/ 

or crossing said plants for several 

generations and for selecting progeny 

with sprouts with purple colouring, 

wherein the sprout comprises at least 

800 nmol anthocyanins per gram 

sprout. This is a plant, obtainable by 

conventional breeding techniques. The 

invention lies in the fact that it was 

observed that purple colour coincided 

with a high anthocyanin content, the 

anthocyanin having a positive effect 

on human health. So the purple colour 

was not a mere esthetical aspect (not 

patentable as such) but had a technical 

effect, namely the provision of a useful 

compound or more healthy sprouts. 

The sprouts are not regarded as a single 

plant variety, as the claimed invention 

covers many different offsprings and 

progenies thereof, i.e. many different 

varieties. 

No certainty yet 

Nevertheless, last words have not 

been yet spoken in this respect. The 

European Patent Office has now, 

in the latest cases (EP1069819 and 

EP1211926) addressed its questions 

to the Enlarged Board of Appeal on 

whether plants obtained by biological 

processes should be excepted from 

being patentable, as the method to 

obtain such plants is excepted from 

Sakura Cress ® (Photo credits: Koppert Cress). 

patentability by law. Until a decision 

is reached, the European Patent has 

now put on hold all Patent prosecution 

proceedings, wherein plants produced 

by conventional breeding and selection 

are claimed. Although these cases 

are still pending, the Dutch court in 

second instance has recently (May 28, 

2013) tried the above radish case and 

concluded that a plant, albeit a product 

of a biological breeding method that 

as such is excluded from patentability, 

is not automatically excepted from 

patentability. In this case, the radish 

plants were held patentable as the 

plants were novel and inventive (no 

sprouts with purple colour and having 

high anthocyanin content were known 

or obvious to the skilled person). 

Purple anthocyanin containing radish 

sprouts would infringe this Patent. 

Again: Patents 

for breeders? 

The Patent system is open for technical 

inventions on plants that are not 

limited to a single plant variety. If the 

plants are produced by a method that 

comprises more than just conventional 

breeding, the method and the plants 

may be patentable. The EPO must 

however still decide whether plants 

produced by breeding will remain 

patentable in the future in Europe. 

The tendency seems to be in favour of 

patentability. By patenting, breeders 

protect their innovative plants from 

free use by others for further development 

of varieties, conferring improved 

protection. ||| 


Tom H. Wittop Koning, PhD, is European and Dutch 

Patent attorney and partner of the Dutch IP law firm 

AOMB, and manages the biotech group from 

AOMB’s The Hague office.


The final proposals 

for a revised 

Regulation on 

Community 

trademarks (CTMR) 1 

and a Directive on 

the Harmonisation 

of the Laws of the 

European Member 

States (Trademark 

Directive) 2 relating 

to trademarks 

were published 

almost a year ago. 

They received 

positive feedback 

from jurists and 

stakeholders 

alike, but it seems 

doubtful whether 

stakeholders in the 

green business will 

always benefit from 

the reform of the EU 

trademark system. 

Trademarks and 

variety denominations - 

harmonisation underway? 

Various names are used as trademarks. Nevertheless, the symbol ® should 

only be used if they are, in fact, registered (Photo credits: Thomas Leidereiter). 

by Thomas Leidereiter 

Most plant breeders assign 

not one, but two names 

to their newly bred 

varieties. In addition to the variety 

denomination used for the PVR 

application a (word) trademark 

is also used. Although the PVR 

and the trademark system cover 

different objects of protection 3 , the 

official variety denomination is also 

protected under the PVR laws to 

some extent, as it constitutes a 

PVR infringement if a protected 

denomination is used for another 

variety of the same or a similar 

species. But what happens in the 

event that a variety denomination 

and a trademark collide? 

A short case study 

Breeder A was granted a Community 

PVR in 2007 for his 

wheat variety ‘DISCUS’. Shortly 

afterwards, trademark owner B 

filed an application for a Community 

trademark also for the term 

‘DISCUS’ covering “living plants 

and parts of living plants, sowing 

seeds, cut flowers in class 31”. 

After the grant of protection was 

issued, breeder C filed an application 

for a perennial ryegrass variety 

with the CPVO. As denomination 

he proposed, as you might 

have guessed by now, the name 

‘DISCUS’ also. When B became 

aware of the new PVR application, 

he filed an objection against the 

proposed denomination. In consequence, 

A – sister company of C – 

filed an application to cancel B’s 

trademark claiming, inter alia, that 

the trademark exclusively consisted 

of a sign that serves to designate the 

kind of goods covered by it (i.e. 

that it is a generic term). The cancellation 

division of the Office for 

Harmonisation in the Internal 

Market (OHIM) cancelled the 

Community trademark ‘DISCUS’ 

on the ground that it would be 

merely descriptive for all goods 

covered by the registration and, 

thus, could not be monopolised. 

The Offices’ reaction 

After the DISCUS case revealed 

that there are certain overlaps between 

both the Community PVR 

and the Community trademark 

system, representatives of the 

Offices gathered and worked out 

amended guidelines for the OHIM 

trademark examiners. The newly 

applied rules read: “Whenever a 

CTM application is filed to register 


a mark containing wording for 

live plants, agricultural seeds, fresh 

fruits, fresh vegetables or equivalent 

wordings, the examiner must 

ensure that the term making up the 

trademark does not coincide with 

the name of a specific plant variety. 

In order to verify this, the examiner 

will first check the CPVO register 

to ascertain if the trademark applied 

for happens to coincide with a 

plant variety name already entered 

in the mentioned register. If the 

check shows an identical entry in 

the register, the examiner must raise 

an objection since plant variety 

names entered in the register are 

considered to be descriptive and 

cannot be monopolised.” 

The rules even go on to state: 

“Lastly, it should be noted than an 

objection should be raised not only 

in respect of applied for trademarks 

that are identical to (or are slight 

variations of) a plant variety name 

that appears in the mentioned 

CPVO register or is used in trade as 

the generic name of a plant variety, 

but also in respect of any good and/ 

or service which can be directly 

linked to the plant variety name in 

question.” 

Or, in short, no Community trademarks 

for variety denominations 

of a registered Community PVR 

should be granted to plants or related 

products. The approach seems 

reasonable. After all, each variety 

must have one free name so that 

it can be referred to by everybody 

after the PVR has lapsed. And for 

everyone who tried to obtain a 

US-trademark in class 31, the 

situation is familiar. The USPTO 

does not accept trademark applications 

covering terms that have 

already been used as varietal names. 

What seemed irritating, however, 

is that under the guidelines only 

denominations of registered Community 

PVR were immediately 

considered generic. One might ask 

why a distinction should be made 

between denominations of varieties 

protected on a European PVR and 

those ‘only’ covered by national 

PVR; not even to mention old varieties 

or varieties with lapsed PVR 

titles. But OHIM’s revised manual 

tried to address this issue as follows: 

“Whenever a CTM application 

consists of wordings for live plants, 

agricultural seeds, fresh fruits, fresh 

vegetables or equivalent ones, the 

examiner will have to verify, by 

means of internet research, whether 

the term making up the applied 

for trademark coincides with the 

name of a specific plant variety 

that happens to be already used in 

trade”. Admittedly, the outcome of 

such research and its interpretation 

seems rather unpredictable. 

An ‘unlawful 

administrative practice’? 

Actually, the OHIM decision in 

the DISCUS case and the revised 

manual for examination seem to 

run somewhat contrary to the 

European trademark laws in force. 

Neither the CTMR nor the current 

Trademark Directive mention 

plant varieties or their denominations 

with a single word. In fact, 

variety denominations, according 

to the law, can only be excluded 

from trademark protection as ‘other 

intellectual property rights’. 4 This is 

the case for example in Germany. 

Under § 13(2)(4) of the German 

Trademark Act, the holder of a 

PVR title has to bring a court action 

5 for the cancellation of a trademark. 

A variety denomination is 

neither seen as an absolute ground 

for refusal nor does it give a right to 

oppose a trademark application. 

More confusion 

underway 

To sum up: the future relating to 

this issue does not look promising. 

While the proposal for a revised 

CTMR does declare variety 

denominations of registered Community 

PVR as absolute grounds 

for refusal of a trademark application, 

the proposal for a Trademark 

Directive remains entirely silent 

about variety denominations. 

If the revised rules entered into 

force unaltered, the confusion 

would be complete: denominations 

of varieties protected as 

Community PVRs will be an 

immediate obstacle to Community 

trademarks. Whether the examiner 

remains obliged to also search for 

other customary denominations 

is uncertain but not likely. To my 

mind, the legislator would be well 

advised to consider at least the demand 

of the International Chamber of Commerce 

6 and to also include denominations 

of national PVRs in the CTMR. 

Whether the trademark practice in 

the individual EU member states will 

change is even less foreseeable. As no 

harmonisation is intended, one may 

only guess how variety denominations 

of any kind are going to be dealt with 

by the national trademark offices in 

the future. 

Conclusions 

Speaking solely about varietal names, 

the envisaged revision of the EU 

trademark system is highly detrimental 

to legal certainty and, consequently, 

to the interests of breeders and other 

trademark holders alike. One simple 

solution to prevent name collisions, 

already adopted by many breeders, 

is the use of coded denominations. 

A trademark ‘12345PVR’ covering 

‘roses’ might at some stage be applied 

for, but such cases seem less likely. In 

any event, anybody filing a national or 

Community trademark application 

in class 31 will face a great deal of 

uncertainty once the proposals have 

been adopted. ||| 

1. Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE 

COUNCIL amending Council Regulation (EC) No 207/2009 on the Community 

trademark; COM/2013/0161 final - 2013/0088 (COD) 

2. Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE 

COUNCIL to approximate the laws of the Member States relating to trademarks; 

COM/2013/0162 final - 2013/0089 (COD) 

3. The Community PVR system, for example, covers variety constitutes, i.e. plant 

material capable of producing plants of the protected variety, while trademarks 

are granted for names, logos, sounds, colours, shapes and the like. 

4. Within the meaning of Article 4 of the Trademark Directive and Art. 53(2)(b) CTMR. 

5. If the trademark holder refuses to withdraw the registration upon a respective 

motion before the trademark office. 

6. Expressed in their Comments on the European Commission Proposals for Reform 

of the EU Trademark System of 1 July 2013. 


Thomas Leidereiter is dealing with Intellectual Property in general and 

Plant Variety Rights (“PVR”) matters in particular. After 14 years at a major 

German law firm, Thomas Leidereiter recently founded his own firm, Green 

Rights, in Hamburg. With an IP background covering trademarks, designs, 

copyrights and the law on unfair competition, he is advising clients on 

all aspects of protection of plant innovations, including IP licensing and 

enforcement. Thomas has been involved in major court cases dealing with 

fundamental PVR issues in the ornamental sector as well as questions 

of PVR infringements. He is a member of the Expert Committee on the 

Protection of Plant Innovations at GRUR, a member of CIOPORA, its 

lawyers’ panel, and of CIOPORA Germany. 



Despite the broad 

legal remedies 

provided by 

Ukrainian Plant 

Variety Right (PVR) 

laws, enforcement 

of Plant Breeders’ 

Rights (PBR) can 

be challenging due 

to the rather small 

number of judicial 

precedents in this 

field, which are 

primarily confined 

to the issues of 

authorship, author’s 

remuneration and 

employee’s varieties. 

by Natalia Stetsenko 

Protecting Plant Variety 

Rights in Ukraine 

Having first ratified the 

Act 1978 of the UPOV 

Convention in 1995, 

Ukraine implemented the 1991 Act 

of UPOV in 2006 in a new PVR 

law providing for protection of all 

plant genera and species. 

The scope of rights granted to plant 

breeders in Ukraine is basically the 

same as in any other UPOV member 

state. The law simultaneously 

provides for both judicial and 

administrative measures for PBR 

enforcement. 

Enforcement of 

Plant Variety Rights 

The governmental agency responsible 

for the enforcement of PVR is 

the State Agricultural Inspection of 

Ukraine, which was re-organised 

in April 2013. This body, also 

acting as Ukraine’s representative 

before ICTA, OECP and other 

international organisations, has 

a broad range of competences, 

including the right to inspect 

producers and sellers of planting 

stock. Based on the results of such 

checks, the inspection may discover 

PVR infringements and initiate 

administrative proceedings. It is 

also authorised to refer the infringement 

records to the prosecutor’s 

office and the police if the PVR 

infringements comprise elements of 

a criminal offence 

Civil and criminal 

actions 

It is possible to bring both civil and 

criminal actions against infringers 

of PVR. Under the provisions of 

the civil code of Ukraine, final 

remedies that may be sought 

against infringers of all types of 

intellectual property rights (PVR) 

include injunctions to restrain 

infringing actions, claim of 

damages for any loss suffered by 

the title holder, lost profit, seizures 

and destruction of the infringing 

material, seizure of materials and 

equipment used for production of 

the infringing material and their 

destruction, publication in press 

(Art. 432 of the Civil Code). 

Only actual damages can be 

claimed. No punitive damages are 

provided for by the law. In cases of 

patent infringements it is common 

practice to calculate damages based 

on the provisions of the existing 

license agreements or, if there 

is no agreement yet, based on a 

hypothetical license. This usually 

requires a specialised economic 

expertise to be conducted by 

certified experts. 

The civil law also provides for the 

right to claim moral damages from 

IPR infringers. When evaluating 

such cases, courts have to establish 

causal relation between the damage 

and activities of the defendant. 

The criminal code provides for 

fines, hard labour, imprisonment 

(up to a maximum of six years), 

confiscation and destruction of the 

infringing goods, equipment and 

materials used for their production 

(Art. 177 of the Criminal Code). 

The latter is supposed to be a strong 

deterring tool. However, in practice, 

there have been no criminal 

cases initiated by the law enforcement 

agencies based on PVR 

infringement. The involvement 

of the police is totally dependent 

on the active position of the title 

holders, since the proceedings 

against crimes covered by Article 

177 may be initiated only upon 

request of the aggrieved party. 

Trademarks rather 

than PVR 

Although the law provides for a 

wide range of legal tools to tackle 

PVR infringements, up to the 

present time, PVRs have been 

rarely used as a ground for legal 

actions. There has been less activity 

in fruits and ornamentals, but the 

seed industry has clearly shown that 

the title holders mostly rely on their 

trademarks rather than on PVRs 

in their efforts to enforce their 

intellectual property rights. 

The same is the case with border 

measures. As of June 1, 2012, 

with implementation of the new 

Customs Code, the application of 

border measures was extended to 

plant varieties, which means that 

plant varieties protected in Ukraine 

can be recorded in the customs 

register similarly to trademarks, 

inventions, designs and other IPRs. 

However, so far no PBRs were 

registered with customs. 

A matter of time 

Under the circumstances of the 

lack of relevant legal practice and 

specific nature of PVR, trademark 

may be used as an alternative tool 

for enforcing PVR, both at the 

border and within the internal 

market. Nonetheless, taking into 

account that Ukraine has sufficient 

R&D resources, necessary facilities 

and expertise for performing DNA 

tests and other relevant researches 

involved with PVR enforcement, as 

well as adequate legal tools provided 

by the current laws, building up 

a relevant practice in the field of 

PVR enforcement is only a matter 

of time. ||| 


Natalia Stetsenko is an IP lawyer 

who has been working with 

Pakharenko & Partners, one of the 

biggest IP and general law firms in 

Ukraine, since 1997. Her practice 

focuses on developing IP protection 

strategies for domestic and international 

clients, IPR enforcement, 

patent and trademark litigation. 

Natalia also heads the firm's 

division responsible for all aspects 

of Plant Variety Protection, 

registration of PBRs, licensing and 

advising on regulatory issues. 


For centuries, 

roses have been 

the quintessential 

symbol of 

love, providing 

inspiration to so 

many people in 

different fields, 

especially in 

the ornamental 

horticulture and 

gardening industry. 

For a long time, the 

history of roses 

starts in hands of 

passionate and 

skilled breeders 

who envision and 

further develop 

existing or new 

colours, fragrances, 

shapes for specific 

or diversified uses 

of the Queen of 

Flowers. 

by Bruno Etavard 

Breeding, imagination 

and market vision 

Although this flower stands 

in the centre of the floricultural 

industry, the traditional 

image of the cultivated rose 

is one classic beauty coupled with 

tedious pest and disease control and 

time consuming pruning year after 

year. Being one of the leading rose 

breeders, for decades MEILLAND 

has been developing both directly 

and indirectly, long term investigation 

activities aiming to prove this 

image wrong and create a World of 

Colours®, not only in the cut flower 

sector, but also in the garden and 

the landscape. 

MEIDILAND ® - the first 

name ever in landscape 

roses 

During the 1980s, the situation 

in roses changed. After working 

patiently with a number of original, 

wild looking species, MEILLAND 

created and introduced new protected 

varieties, defined not only by 

improved aesthetics, but a number 

of problem solving features for 

landscape architects and endconsumers 

alike. 

At that time the breakthrough 

varieties, such as Meigekanu 

LA SEVILLANA® and Meidomonac 

BONICA® – the first landscape rose 

to be granted AARS – were a true 

step forward for the market with 

their decorative features, but also 

due to the ability of these varieties 

to be propagated by the own-root, 

their suitability to large scale 

industrial planting, their tolerance 

towards pests and diseases and 

extreme weather conditions. These 

varieties ranked among the first 

ecological and easy-care roses 

distributed under the same 

umbrella trade name worldwide. 

KNOCK OUT ® - the 

revolutionary rose family 

Since 2000, Will Radler has 

certainly revolutionised the way 

we think of roses. Working closely 

with both Star® Roses and Plants 

and MEILLAND during a 15-year 

selection process, this amateur rose 

breeder brought to the market a 

complete range of easy-to-grow 

varieties which don’t require any 

other special care except annual 

pruning in early spring. 

With such a rose at hand, the 

consumers of the early 21 st century, 

should they live in Moscow, 

San Francisco or Tokyo, could start 

to forget what they know about 

roses being difficult to grow. 

From Radrazz KNOCK OUT® 

(AARS in 2000), the genetics of 

the KNOCK OUT® family has been 

definitively a further step towards 

zero spray target of roses and easycare, 

two major expectations of 

the end-consumer 

DRIFT ® - The next big 

thing for small gardens! 

The prototype for the DRIFT® series 

was first sent for a test in 1992. 

At that time, the idea was certainly 

right. However, with patience, being 

one of the most needed virtues 

in rose hybridising, and selection, 

the efforts continued for years after 

that. 

Finally, by 2008 a full set of five 

varieties were introduced, showing 

the characteristics the market was 

looking for: toughness, pest and 

disease tolerance and winter hardiness 

combined with a suitable size 

and repeat-blooming nature. 

The low, spreading habit of DRIFT® 

does correspond perfectly to the 

latest use of the rose by “modern 

and new” consumers who have 

no time, and less space available 

compare to their parents. DRIFT® is 

now one of the latest breakthrough 

innovation colonising terraces and 

small urban gardens. 

Timing is everything 

Over the past 40 years, 

MEIDILAND®, KNOCK OUT® 

and DRIFT® are illustrating at 

Meilland garden roses (Photo credits: Meilland). 

MEILLAND a long term process 

in the plant business, looking for 

innovations and making them 

available according to the markets 

needs and requirements. 

Of course all the research and 

development activities could not 

happen without being supported by 

the relevant Intellectual Property 

tools and related strategies wherever 

needed and possible. 

Having said that, breeding, imagination 

and long-term vision are 

the necessary ingredients for 

constructing our future. ||| 


Bruno Etavard has been active in the 

field of plant breeding since 1982. In 

1988 he joined Meilland International, 

the world leading company in rose 

breeding, as a License Manager. 

Bruno Etavard has been the member 

of IRBA, the International Rose 

Breeder Association, since 1988. He 

joined the Board of CIOPORA in 2010. 

He is also a vice-chair of the Crop 

Section Cut Rose (IRBA). 



It has long been 

felt that the 

Australian PBR 

regime, although 

comprehensive 

in legislation, 

is impractical 

for effective 

enforcement by 

being too restrictive 

and expensive for 

most of the PBR 

holders in the 

ornamental sector. 

Enforcement reform: an 

The Australian Government 

has recognised this concern 

from the industry and the 

decision was made to review in a 

broad and strategic way, the role 

of intellectual property and its 

contribution to the development of 

Australian Industry and charged 

the Advisory Council on Intellectual 

Property (ACIP) with the 

responsibility to fulfil this objective. 

Significant developments 

It was recognised that significant 

developments are occurring at both 

a national and an international level 

in plant variety development and 

exploitation, which have increased 

the importance of Plant Breeders’ 

Rights and their enforcement. The 

goal was to review the effectiveness 

of Australian PBR enforcement. 

ACIP, an independent body that 

advises the appropriate Australian 

Federal Government Minister 

on intellectual property matters, 

was tasked to enquire, report and 

make recommendations to the 

Australian Government on issues 

related to the enforcement of Plant 

Breeders’ Rights in Australia and 

consider possible strategies to 

assist Australian PBR holders to 

effectively enforce valid rights. It 

Accepted 

by Chris Prescott 

There were a total of 23 recommendations 

submitted by ACIP 

and the Australian Government 

issued the Government’s response 

in June 2011 with 15 recommendations 

accepted, four accepted 

in principle and four rejected. 

The following is a brief outline of 

the recommendations that were 

accepted: 

• The PBR Act to be amended to 

clarify that harvested material, 

that is also propagating material, 

is to be considered as such 

material even if it is not being 

used for that purpose. 

• As part of IP Australia’s education 

and awareness programs, raise 

industry awareness of the opportunity 

to have specific taxa 

excluded from the farmer’s 

privilege exemption. 

• Encourage PBR owners to clarify 

to growers the conditions of sale 

of propagating material and their 

obligations in relation to future 

generations of it. 

• Enable EDV declarations to be 

made in respect of any variety. 

Currently an EDV declaration 

can only be made in respect to 

a protected variety 

• Retain responsibility for EDV 

declarations with the PBRO 

(Plant Breeder’s Rights Office) 

and ensure the PBRO has the 

ability to assess such applications. 

This may involve the Plant 

Breeder’s Rights Advisory 

Committee (PBRAC). 

• The jurisdiction of the second tier 

of the Federal Court of Australia 

to include PBR matters. 

This would dramatically reduce 

the legal costs of enforcing an 

infringement through the courts. 

The recommendation was that 

some disputes can be handled 

in the Federal Circuit Court at 

a lower cost and also making it 

easier for litigants to use this court 

in each Australian state rather 

than only in Canberra. It would 

also make it easier to obtain court 

orders from a judge in issues 

relating to customs seizures etc. 

This recommendation had been 

presented in the lower house of 

Parliament in 2013, however due 

to the federal election it was never 

ratified in the Senate. 

• IP Australia facilitates ADR 

(Alternative Dispute Resolution) 

for parties in dispute by establishing, 

maintaining and making 

publicly available basic information 

on the ADR options for PBR 

owners and a register of ADR 

service providers with PBR and 

plant breeding experience. 

ACIP is currently considering 

the establishment of an IP dispute 

resolution centre. The centre 

envisaged by ACIP would provide 

mediation, appraisal, validity and 

infringement opinion services, 

delivered by experts drawn from 

a panel on a case-by-case basis. 

• Introduce exemplary damages 

provisions for PBR: currently, 

when the court finds an infringer 

guilty, the title holder is only able 

to claim lost profits. In the case of 

most ornamental infringements 

this means that, even though the 

right holder has won the case, 

the expense of bringing such an 

action has left him out of pocket. 

With exemplary damages the 

court can issue a verdict that 

forces the infringer to pay beyond 

the lost profits. 

• IP Australia focuses its PBR 

educational and awareness efforts 

on the tertiary sector. 

• No changes to be made to 

extended rights. 

• No changes to be made to s. 17 

(conditioning and use of farm 

saved seed) in relation to asexual 

propagation at this time. Asexual 

propagation by plant nurseries 

is an exercise of the exclusive 

right and is not exempted from 

infringement by s.17. 

• No changes to be made to 

exhaustion of PBR and clarify in 

the PBR Act that the mere sale 

of propagating material G0 for 

purposes of growing and selling 

G1 does not necessarily imply a 

licence to purchase crop G1. 

• No changes to be made to the 

pre-grant enforcement provisions. 

• The Government takes no action 

either in establishing an industry 

peak body or collecting agency, 

or in relation to the development 

of standard contracts and licence 

agreements at this time. 


Australian story 

was not a general review of the PBR 

legislation, but more precisely it was 

a review established to identify difficulties 

in enforcement and recommend 

solutions to these difficulties 

where appropriate. 

Although I am not completely 

satisfied with all the outcomes of 

this review, and there are many 

areas that require further reform, 

I do, however, feel that ACIP has 

Accepted in principle 

The following is an outline of the 

recommendations accepted in 

principle: 

• There will be no change to the 

operation of farmer’s privilege. 

The Government indicated that it 

can work with the plant breeding 

industry and achieve the recommended 

result by better explaining 

the operation of section 

17 in education and awareness 

campaigns. 

• An on-going Expert Panel to be 

established to provide guidance 

and opinions on general issues or 

specific cases concerning the 

PBR Act and related law. The 

Government noted that PBRAC 

already has the powers to investigate 

technical matters and administrative 

matters arising under the 

recommended to Government a 

well-defined road map that will 

assist breeders in the future by 

not only protecting their varieties, 

but more importantly - making it 

more efficient and cost effective to 

enforce their IP rights in Australia. 

The full ACIP report, as well as the 

Government response, is available 

online at http://www.acip.gov.au/ 

reviews/all-reviews/reviewenforcement-pbr/ 

||| 

PBR Act, once these matters have 

been referred to the PBRAC by 

the Registrar. 

• IP Australia to liaise with the 

Australian Federal Police (AFP) 

and Commonwealth Director 

of Public Prosecutions (CDPP) 

with a view to increase the 

number of investigations and 

prosecutions of the PBR infringement 

cases. 

• Introduce an Information Notice 

System into the PBR Act based 

on the UK Information Notice 

system. IP Australia is to investigate 

the feasibility of developing a 

cost-effective Information Notice 

System to enable PBR owners to 

obtain information on the source 

of plant material from suspected 

infringers. 

IP’s central office in Canberra (Photo credits: IP Australia). 

Not accepted 

• A new “purchase” right to be added to s. 11 (general nature 

of PBR). Had this recommendation been accepted it would 

have provided the ability for an ‘End Point Royalty’ to be 

charged at place of purchase similarly to the pay-by-scan that 

is used in the USA. 

• Amendment to s. 4 (c) (definition of Essentially Derived 

Varieties) by replacing the test for important features with a 

test for essential characteristics. This recommendation would 

have brought Australia and CIOPORA’s positions on EDV 

and Minimum Distance closer together. 

• Introduction into the PBR Act of the PBR seizure powers 

for customs. The rejection of this recommendation places 

Australia at odds with other developed nations and makes 

global Plant Variety Protection problematic. It is greatly 

advisable for a market economy such as Australia, to have the 

ability to stop counterfeit material from entering the country 

with the use of customs. The rejection doesn’t mean a court 

order can’t be obtained to stop infringing product, but adds 

an additional step and is counter to the desired reform of 

enforcement. 

• Protection against mendacious variety declarations. 

Photo credits: IP Australia 


Chris Prescott has 30 years of experience in the cut rose industry, 

24 of which as the managing director of his own enterprise, Prescott 

Roses Pty Ltd. In the course of his carrier he taught commercial rose 

growing at Swinburne University and since 1994 he has been working as 

Qualified Person (QP) in the Australian PBR Scheme. Chris’ involvement 

with Grandiflora, where he is dealing with variety selection and IP 

strategies, began in 2004. He is currently in his second term as a member 

representing plant breeders at PBRAC (Plant Breeders Rights Advisory 

Committee), a committee that advises the Federal Minister for Industry 

on issues related to the PBR scheme at IP Australia. 


PBR enforcement 

Against any act of 

infringement an IP 

title holder with 

rights valid on the 

territory of Italy 

may choose several 

ways to enforce his 

rights, including 

challenging the 

alleged infringers 

before a criminal 

prosecutor. 

by Nicola Novaro 

Different Italian routes 

against counterfeiters 

According to the Italian laws, 

criminal offences against 

the owners of IP titles are 

regulated by Articles 473, 474 and 

517 of the Penal Code, which were 

strengthened by Law 99/2009. 

Different penalties 

The said provisions foresee different 

penalties for various types of 

infringements, such as: 

• imprisonment for a minimum 

term of six months to a 

maximum of three years, plus 

a monetary fine of a minimum 

of €2,500 up to a maximum of 

€25,000, in case of infringement 

of a registered trademark; or 

• imprisonment for a minimum 

term of one to a maximum of 

four years, plus a monetary fine 

of a minimum of €3,500 to a 

maximum of €35,000, for the 

infringement of patents, designs 

or models; or 

• imprisonment for a maximum 

term of two years, plus a fine of 

up to a maximum of €20,000, 

for the import, coming into 

possession for commercial purposes, 

sale or circulation of goods 

bearing counterfeit or altered 

marks or distinctive signs, or the 

violation of other IP rights. 

The latter provision may apply to 

infringements of Plant Breeders’ 

Rights. 

Law 99/2009 qualifies specific 

circumstances of the crime with additional 

imprisonment terms from 

two to a maximum of six years, 

when the illicit acts are involved, for 

instance, in cases with substantial 

quantities of counterfeit goods or if 

the illegal actions are committed 

repeatedly and bear signs of an 

organised criminal offence. 

Administrative sanctions 

Additionally, some acts call upon administrative 

sanctions to be applied 

by administrative bodies, such as 

seizure of the counterfeit goods and 

Seized tomato plants (Photo credits: AIB). 

their disposal within three months 

of seizure in case of an evident 

infringement of registered marks, 

designs and models, or systematic 

and willful counterfeiting of other 

IP rights (i.e. Illegal propagation). 

In case of IP infringement, the 

police is responsible for carrying 

out the investigation, including 

recording of the calls and undertaking 

the seizures, which must be 

confirmed by a competent court and 

may be subject to re-examination. 

In addition, further laws contain 

other provisions that might be 

applicable in cases of IP rights 

infringement, such as the administrative 

responsibility requirement 

(Law 231/2001), stating that 

organisations may be held liable for 

certain crimes of fraud, committed 

or attempted, by members of senior 

management and by those working 

under the direction or supervision 

of thereof. This provision includes 

the infringement of Intellectual 

Property rights. 

Various strategies 

worthwhile 

A short overview of the Italian 

criminal law presented above 

already demonstrates that in some 

cases it is worth thinking about 

various strategies for combating 

illegal propagation. 

In Italy, it is quite common and frequent 

to initiate legal action against 

any counterfeiter using the instruments 

of civil litigation. However, 

it is widely known that the Italian 

civil justice can be unsatisfactory in 

terms of positive verdicts on merit 

cases (although the preliminary 

injunctions can be granted quite 

swiftly). Even in the case of a positive 

outcome for the IP holder, with 

awarded damages to be paid by the 

infringer, it might be a real nightmare 

to collect all the amounts due. 

In some cases, however, it might be 

necessary to choose the civil path 

for various reasons (consumer defence, 

legal market, etc.). Over the 

course of several years, I have been 

advising clients to utilise a number 

of alternative tools, such as the instruments 

of criminal law, in their 

fight against illegal propagation. 

On the basis of serious evidence 

of infringement, our clients were 

advised to report the infringers of 

their Plant Breeders’ Rights with 

complete information about place, 


address, names of the farm proprietors, 

plant varieties involved, results 

of genotypical or phenotypical 

tests and so on, that can be useful 

information for the enforcement 

agencies. 

Before the release of denouncement 

letters, we had to identify the public 

authority for the launch of the antiinfringement 

action. Although several 

law enforcement bodies could 

have become involved, we decided 

that the Anti-Fraud Service at the 

Ministry of Agriculture (ICQRF) 

was the most suitable organisation 

due to the technical issues involved 

in the investigation process. 

Illegal tomato 

young plants 

The first denouncements were made 

against tomato growers suspected of 

the illegal propagation of protected 

varieties. In the first case in Salerno 

province, the results were quite 

positive, as ICQRF responded 

promptly, and only three days later 

two inspectors, guided by an exparte 

technical advisor, visited the 

facilities. 

Some 9,000 young plants were 

discovered, and the grower admitted 

that these plants had been 

vegetatively propagated from a 

protected variety. From the analysis 

of the plant material found on the 

premises of the farm, it became 

clear that the seized young plants 

constituted only a small part of a 

much larger propagation activity, 

since the inspection took place at 

the very end of the season. 

As no plant passport could be 

presented for the original plant 

material on the basis of which the 

vegetative propagation had been 

carried out, the following day the 

inspectors examined the facilities of 

the plant raiser who had supplied 

the original material to the grower. 

At the moment this case is pending 

before the competent Public Prosecutor, 

and the alleged infringer runs 

a serious risk of being sentenced to 

imprisonment and a fine penalty by 

a local Court. 

A further outcome of this action 

was, that the young plants were 

seized and even when the lawyer 

of the defendant tried to contest 

the seizure order, the judge kept 

it in force, which resulted in the 

perishing of the plants. The investigation 

carried out by the Public 

Prosecutor in charge was completed, 

and we shall soon proceed with 

the civil part of the proceedings and 

claim damages for the violation of 

the Plant Breeders’ Right. 

The inspection also led to a 

discovery of information on 

infringements of other PBRs: on 

the basis of the discovered evidence 

I filed a formal denunciation 

against the involved grower directly 

to the Public Prosecutor. 

This claim is now pending before 

the Public Prosecutor, and we are 

monitoring the case and providing 

the prosecution with further 

documents and information that 

we gathered later on, to build up 

enough evidence for the initiation 

of a criminal case. A press release 

about this action, prepared in 

co-operation with the ICQRF, was 

circulated widely and picked up by 

the major industry magazines and 

websites. 

Lettuce 

A second denunciation was made in 

the Lazio region. Already a couple 

of days after the complaint, ICQRF 

inspected a grower and confiscated 

some young plants for variety 

identification run by the Variety 

Registration Office (CRA-SCS). 

We are confident that in this case a 

criminal case can also soon be initiated 

against the alleged infringer. 

A third case deals with an infringement 

in lettuce. It was discovered 

after a variety identification test, 

conducted by AIB (Anti-Infringement 

Bureau) on suspected varieties 

from the market, had confirmed a 

match with the protected lettuce 

varieties. Based on the results of the 

AIB tests, we lodged a denouncement 

at ICQRF against a seed 

distributor in the Naples region. 

In the following week, ICQRF 

took action and, accompanied by 

our representative, inspected the 

premises of the distributor. The 

suspected seeds were found and 

sampled, and the identification 

test of the seed samples is on its 

way. 

Illegally propagated tomato young plants at the nursery 

(Photo credits: AIB). 

Partnerships 

Further cases are on-going and 

we hope to get positive results in 

our fight against the infringers. 

After these achievements, the AIB 

represented by the Breeders Trust, 

one of AIB’s sister associations 

dealing with infringements in 

grasses and seed potatoes, decided 

to enter into a formal cooperation 

agreement with the ICQRF. It is 

expected that a co-operation protocol, 

which includes the technical 

training of the ICQRF inspectors, 

the exchange of information, and 

other joint activities, will soon enter 

into force. 

In conclusion, I would like to 

emphasise that the partnerships between 

public and private sectors are 

absolutely necessary for the effective 

battle against the illegal propagation. 

Especially, as it becomes more 

and more evident that the PBR 

infringements harm not only the 

title-holders (breeders), but also the 

public institutions. ||| 


Nicola Novaro obtained his Law Degree in 1996 from the University of 

Pavia. In 2000, he became a lawyer after enrolling at the Law Society of 

Imperia. During the same year he participated in a Master on Intellectual 

Property Rights organised by the IP Centre in Verona. Nicola currently 

works as a legal advisor for the worldwide rose breeder NIRP International, 

where he handles all IP rights issues. He also acts on behalf of 

other companies for trademark, Plant Variety Rights and industrial design 

filings before national, regional and international offices. 


Ecuador 

Over the past two 

years, Ecuador has 

seen a dramatic 

increase in PBR 

and regulatory 

change regarding 

IP procedures, 

jeopardising the 

competitiveness 

of the Ecuadorian 

flower industry as a 

whole. The Ciopora 

Chronicle reports. 

by Dean Rule 

Changes are in the works 

The snow-capped Cayambe 

mountain in the Ecuadorian 

Andes has a unique feature. 

No other place on the equator has 

snow twelve months a year. Farms 

producing what many consider the 

best quality greenhouse roses in the 

world are located on the high altitude 

plateaus at a little over 3000 

meters above sea level and in the 

valley below at about 2.850 meters 

above sea level. 

From limited production areas in 

the 1980s, the rose growing area 

in Ecuador has expanded to over 

2,500 hectares and expanded out to 

farms near the Colombian border 

in the north and near Cuenca 

in southern Ecuador. Superior 

growing conditions combined with 

excellent management have and 

continue to make Ecuadorian 

flowers world renowned. 

Newly proposed law 

An Intellectual Property Law 

passed by the Ecuadorian Congress 

and signed by the President in 1998 

was implemented in 1999. It gave 

the breeders the tools to combat 

piracy, offered the growers protection 

from unfair competition and 

was a key factor leading to the tremendous 

growth in the Ecuadorian 

production of roses, Gypsophila, 

Hypericum and other flowers. 

Ecuador is now seven years into a 

government that has the slogans 

‘Citizens’ Revolution’ and ‘Socialism 

for the 21 st Century’. The 

Constitution and many basic laws 

have been changed. 

One proposal is to replace the 

Intellectual Property Law with the 

Organic Code of Social Economy 

of Knowledge and Innovation 

(COES). This new law is to change 

the legal nature of Intellectual 

Property rights into a code, where 

increasing what is available in the 

public domain is an objective in a 

push for creative activities and social 

innovation. Key changes proposed 

include taking away possible penal 

sentences for certain violations of 

the Intellectual Property Law. 

Superior growing conditions combined with excellent management have and 

continue to make Ecuadorian flowers world renowned. 

Restrictive policies 

In recent years, Ecuador has lagged 

far behind its neighbouring countries, 

Colombia and Peru. It failed 

to attract foreign investment due to 

several issues including: problems 

with the legal system; lack of trade 

agreements that favour production 

in Ecuador and exporting to countries 

in North America and Europe, 

expropriations of foreign owned 

investments with varying levels of 

compensation and other restrictive 

policies. 

At the same time, one of the objectives 

of the government is to change 

the country’s production and export 

emphasis from commodities to 

value added products. Ecuador is an 

OPEC nation, with petroleum as its 

largest export, followed by bananas, 

flowers, shrimp, coffee and cocoa. 

Nevertheless, many do not seem to 

understand that a bouquet of flowers 

is already a value added product, 

bringing in far more income and 

providing more employment per 

hectare than any other significant 

agricultural crop in the country. 

Misguided thoughts 

A group of small growers with 

connections to certain individuals 

within the government blamed 

their struggles on the cost of royalties. 

Some within the government 

had the misguided thought that 

over 30% of the income of the 

farms would be paid as royalties, 

when in reality the average is 

probably 3-4%. Some government 

officials clearly indicated their 

intention to make breeders abandon 

certain variety registrations, so 

that the varieties would pass to the 

public domain within Ecuador, and 

even stated erroneously that if the 

variety was in the public domain 

in Ecuador then exports from the 

country could not be controlled in 

other countries. In response, one of 

the changes implemented in 2013 

under the current Intellectual 

Property Law was the raising of 

the fees to register and protect 

the genetics of a plant variety to a 

total of almost $170,000 over the 

twenty year period that the variety 

can be protected. The sliding scale 


increases each year to reach levels 

unmatched in any other country 

in the world. The initial effect 

was three-fold. Many breeders 

abandoned protection of some 

older varieties in Ecuador and also 

greatly restricted the introductions 

of new varieties into the country. 

Also, actions have been taken in 

the European Union showing that 

even where Ecuadorian government 

officials fail to provide the legal 

protection within the country those 

actions can be taken in key export 

markets. 

High wage rates 

Ecuador has one of the highest 

wage rates of any flower exporting 

country. With many growing areas 

being in the high altitude tropics, 

many farms are spending nearly 

60% of their income on labour 

costs. High freight rates compared 

to their natural competitor and 

neighbour, Colombia, have long 

affected their position in the more 

price competitive segments of the 

market. 

Labour laws that create long term 

obligation for farms also complicate 

the competitive position, and many 

growers are struggling to survive or 

sell out to farms that are better capitalised 

and structured to face the 

competitive pressures. At the same 

time, over 70% of the growing area 

is represented by Expoflores, the 

Ecuadorian floriculture association. 

The Association shares the 

position of the breeders (many are 

also members of the Association) as 

to the importance of proper variety 

protection and the damage that 

would be caused for all parties if 

varieties passed prematurely to the 

public domain. 

One of the stated objectives of the 

Ecuadorian government is to push 

breeders to move their operations 

to Ecuador and to encourage local 

companies to breed varieties to 

replace those coming from other 

countries. Discounts on a sliding 

scale for 2014 are the following: 

1. 10% for having a showroom to 

display roses that are completely 

selected outside the country. 

2. 20% for presenting a request for 

registration of summer flowers. 

Fees of this level make most 

summer flowers uncompetitive 

compared with other growing 

areas in the world. 

3. 70% for doing both selections 

from codes and final approval of 

varieties within Ecuador. 

4. 90% for breeding and selecting 

the varieties within Ecuador. 

Discrimination 

in fee levels 

Most rose breeders have long been 

doing selection from codes and 

introduction of varieties within 

Ecuador and are eligible for the 

70% discount. However, the 

discrimination in fee levels is 

considered by many a violation 

of the TRIPS agreements under 

the World Trade Organization to 

which Ecuador belongs. With the 

implementation of the discount 

structure, breeders will be more 

inclined to introduce and register 

new varieties in Ecuador, and some 

additional breeders may implement 

breeding programs in the country. 

Potential conflicts 

The Ecuadorian government is 

in the process of negotiations of a 

trade and cooperation agreement 

with the European Union. The 

negotiators for Europe are very 

aware of the potential conflicts 

between internationally accepted 

norms of Intellectual Property 

Protection and the current status 

of protection within Ecuador. 

The highest authorities in Ecuador 

may need to decide between the 

alternatives of signing a trade agreement 

with the European Union or 

making major changes to the Intellectual 

Property Law, as the new 

draft law does not meet European 

standards of protection. 

The new proposed law, COES, 

includes some significant changes 

from the current law. The protection 

period for most flowers will be 

reduced from 20 to 15 years. It may 

restrict the registration of natural, 

spontaneous mutations based on 

the interpretation of clauses in 

the law. Use of wild species in the 

breeding is restricted. For protection 

to apply between the application 

for a variety and the granting 

Ecuador’s 

floriculture is 

represented at 

major European 

floricultural and 

horticultural trade 

fairs. Here: at 

the IFTF 2013 in 

Vijfhuizen 


Anna Kaehne). 

of Plant Breeders’ Rights, the possible infringers 

must be notified that the registration process is 

underway. The door may be left open for “traditional 

community farming” of the variety. 

Royalties 

One of the key areas the Ecuadorian government 

wanted to change is the royalties and protection 

of certain medications in order to weaken the 

position of the large multinational pharmaceutical 

companies in changing high prices for certain 

proprietary products. One way this has been 

approached is the pushing of generic, locally 

manufactured medications and the provision of 

declaring the free availability of medication for 

reasons of public interest, including epidemics. 

The draft of the new law includes the provision 

that a variety can be forced to become freely 

available or mandatory licensing by executive 

decree or ministerial resolution upon reasons of 

public interest, emergency or national security, 

none of which should apply to flower exports. 

Restricting access to new varieties 

Changes in fees have already affected the Ecuadorian 

flowers industry by restricting access to 

those varieties important for growers and buyers 

serving niche markets. The legal honest growers 

that are complying with all their legal obligations 

with the Ecuadorian government are forced into a 

complicated, uncompetitive position against small 

growers or the few illegal larger growers that are 

often not completing their obligations in other 

areas. Ultimately, the losers will be the consumers 

who would otherwise benefit from a greater 

supply of premium quality flowers that come from 

Ecuador. ||| 


Dean Rule is a general manager at Conectiflor SA in Quito, Ecuador and agent 

for E. G. Hill Company Inc., Jan Spek Rozen BV and Terra Nigra BV, involved in 

breeding, selecting and introducing to the market greenhouse roses. 



The availability 

of new varieties 

is very important 

for society, but 

also for breeders, 

growers and 

farmers. Just think 

of new varieties with 

disease resistance, 

herbicide resistance, 

drought resistance, 

the ability to 

withstand lower 

temperatures, salt 

tolerance and the 

ability to grow 

with less fertilizer. 

The International 

Association of 

Horticultural 

Producers (AIPH), 

representing 

ornamental growers 

worldwide, shares 

this interest with 

plant breeders and 

this forms the basis 

for consultation 

with CIOPORA 

and other relevant 

organisations. 

by Mia Buma 

Growers’ perspective on the 

role of effective IP protection 

The aim of the AIPH standing 

Committee for Novelty 

Protection is to communicate 

the views of growers in relation 

to plant novelty protection and 

Plant Variety Rights (PVR). AIPH 

endorses the UPOV system and is 

of the opinion that the system plays 

a positive role in the development 

of the sector and the relationships 

between breeders, propagators, 

growers and traders. AIPH is 

encouraging countries to accelerate 

the implementation of a PBR 

system and to bring their legislation 

in line with the Act 1991 of the 

UPOV Convention. AIPH pleads for 

strong and balanced PBR that helps 

breeders to act in protection of their 

rights and supports growers who 

legally use protected varieties. 

What kind of right is 

Plant Breeders Right 

(PBR) exactly? 

AIPH believes that the system of 

Intellectual Property (IP) protection, 

to which PBR belongs, 

benefits the progress of mankind 

and society. The goal of PBR is to 

stimulate plant breeding by means 

of an IP system, which ensures that 

we (society) accept that certain 

entrepreneurs can gain a monopoly 

for certain products, for a certain 

period of time and under strict 

conditions. This matters because it 

is important to society to stimulate 

intellectual and economic activities 

that contribute to technical and 

intellectual progress. This in turn 

supplies essential and useful 

products to society. It holds for 

plant breeders as well as all inventors 

and creators, including the 

holders of patents, designs, etc. 

An IP right is an abstract right. 

This is the fundamental basic 

principle of all IP systems. It means 

that a PBR is not a right on a plant, 

but it is a product of the mind, an 

attainment of the spirit. An abstract 

right means that it does not rest 

on something tangible like the 

ownership of a house – something 

you can see and feel – because the 

subject of its protection is an idea, 

which occurs in the human brain. 

It is the Eureka moment! The IPR is 

also an absolute right, which means 

a right you can exercise against 

everyone. 

Furthermore, a breeder acquires 

a monopoly in the form of a PBR, 

but under rather strict conditions. 

For example, under the breeders’ 

exemption PBR only extends to 

harvested material if the breeder 

had no reasonable opportunity 

to exercise his right on propagating 

material (Art. 14.3 of UPOV). 

Because society benefits from innovation 

and technical and cultural 

progress, the monopoly makes 

an exception to the rules of competition 

and the free market forces 

that normally apply. 

Why are PBRs 

so important for 

the industry? 

When you understand the fundamental 

principles of the IP system, 

you will see that a PBR is not a sole 

right of breeders, but a right of the 

society. This means it concerns all 

parties involved, including breeders, 

growers, producers, traders and 

even consumers. Therefore, a PBR 

has to be exercised and enforced in 

balance with the interests of all the 

parties involved. 

In short, PBR is not a right that 

serves only breeders’ interests, 

although sometimes this is mistakenly 

assumed by some breeders and 

their lawyers and it is clear that the 

use of PBR to control the market 

should be prevented. The provision 

that requires sufficient availability 

of the propagating material of protected 

varieties at reasonable terms 

is important, as is the compulsory 

license provision in international 

treaties and national laws. Both 

provisions aim to prevent absolute 

market control. In some national 

PBR legislations these provisions are 

included (e.g. The Canadian Plant 

Breeders’ Rights Act 1990). 

Innovation and product renewal 

are the basis for progress in the 

ornamental sector. Therefore plant 

breeding and an effective PBR system 

are fundamentally important. 

Society in general, and growers 

in particular, are interested in the 

development of new varieties, and 

so AIPH pleads for a strong and 

balanced PBR system, which 

endorses fair competition. It is 

important for growers and farmers 

that they are supplied with the 

demanded amount of propagating 

material at the right time and at a 

reasonable (and equally available) 

price to ensure fair competition. 

What are the key 

issues since the 

introduction of PBR? 

The question about the minimum 

distance between varieties has 

always been on the list of challenges 

for the PBR system. What does 

and what does not fall within the 

scope of granted PBR, or: when is a 

new variety sufficiently distinctive 

(innovative) to be granted a PBR? 

The issue of Essentially Derived 

Varieties (EDV) and the discovery 

of a mutant, for which PBR may be 

granted, are examples of this issue. 

Furthermore, we have to bear in 

mind that the question about minimum 

distance has to be answered 

in light of the legal basis of the PBR 

system (the benefit of society!). It 

means that the distance between 

certain varieties with a very limited 

assortment, such as vegetable 

varieties (cucumbers, tomatoes and 

lettuce), can be smaller than in 

trees, bulbs or other crops that are 

more time-consuming to breed. 

Otherwise, it would be impossible 

to obtain PBR titles for varieties 

with a limited assortment and this 

would stop, rather than stimulate, 


the breeding of these crops. 

For example, if a breeder, after a 

25-year long process of breeding 

resulting in one good new commercial 

apple variety, is granted a PBR, 

it is not fair if a competing breeder, 

who only adds a slightly or insignificant 

charateristic, is granted a PBR 

as strong as the first breeder. 

In short, the minimum distance 

each new variety should fulfil, will 

have to be determined individually 

on the basis of important variety 

characteristics (main characteristics). 

The establishment of common 

guidelines in this regard has been 

agreed at diplomatic conferences to 

UPOV 1991, but unfortunately it 

has not been completed by UPOV. 

In years preceding the Act of 1991, 

UPOV was busy formulating the 

main characteristics for 10 to 12 

important varieties with the goal of 

helping to decide if the criteria for 

distinctness had been reached. 

In October 2013, at the UPOV 

seminar on EDV in Geneva, 

AIPH once again urged UPOV to 

complete these guidelines. 


of PBR for growers 

of ornamental crops 

The availability of new varieties 

is important, for society and for 

the industry. It is also vital for 

breeders, propagators, growers and 

farmers that there is a common 

understanding about what a variety 

is and when a new variety exists. 

Based on this, all parties involved 

have to find common ground on 

issues such as minimum distances, 

EDV and mutants. If we solve these 

issues, the current EDV rule, which 

has been deemed unworkable, 

can be removed from the UPOV 

treaty and national PBR laws. If we 

succeed in making proper arrangements 

concerning the minimum 

distance between varieties, the 

impractical EDV provision would 

become unnecessary. 

It is important for growers and 

farmers that they are supplied with 

sufficient propagating material 

in time and at a reasonable price. 

However, these issues are sometimes 

not easy to discuss with 

breeders. It is in everyone's interest 

that new varieties are launched and 

introduced carefully to avoid unnecessary 

underselling and market 

disruptions. 

From the past we can learn how 

in a very short time market shares 

can shift and change with the 

introduction of new varieties. For 

example: Van der Have owned 

80% of the world market for grain 

in the 1980s. Now Van der Have, 

although having since merged 

with another firm, only own 10%. 

Similarly, Hazera and Danielle 

controlled 80% of the world tomato 

market in the 1990s. Today, having 

also undergone a merger and now 

under the name of Vilmorain, they 

own only 20%. 

This is an important point on 

which AIPH also tries to get agreement 

with the breeders and on 

which the industry could come to 

accordance if all involved parties 

admitted that the introduction of 

new varieties to the market has to 

be done restrictively and cautiously. 

In that case the market control on 

the basis of PBR can be prevented. 

Here lies a basic necessity of consultations 

between all involved parties 

and their associations. 

Final remarks 

It is clear, from the growers point 

of view, that PBR is of social 

The representatives 

of AIPH and 

CIOPORA met 

during the IFTF 

2013 in Vijfhuizen, 

the Netherlands, 

engaging in a 

fruitful discussion 

on the role of 

PBR for breeders 

and growers 


CIOPORA). 

importance in general and of commercial 

importance for growers in 

particular. A good working PBR 

system is important for product 

differentiation that can provide a 

marketing advantage for growers. 

AIPH is working on an internal 

program with the aim to enhance 

the awareness of PBR among its 

members and to stimulate growers’ 

engagement with the subject. 

Subsequently, the members will 

be able to improve their lobbying 

of their respective national governments 

on PBR related topics. AIPH 

also plans further engagement with 

the World Intellectual Property 

Organisation (WIPO), the 

Agreement on Trade Related 

Aspects of Intellectual Property 

Rights (TRIPS) and the World 

Trade Organisation (WTO). These 

organisations have historically not 

been involved with ornamental 

horticulture; it is time to change 

this. ||| 


Mia Buma is the Secretary of the Committee for Novelty Protection, 

AIPH. In spring 2008, she started her own consultancy bureau, Mia 

Buma Advies. Mia is now working freelance for (among others) the Dutch 

flower auction FloraHolland, the Dutch Association of Wholesale Trade in 

Horticultural Products (VGB) and the International Association of Horticultural 

Producers (AIPH). In addition, Mia became increasingly involved 

in Plant Variety Protection (PVR) and its relation with other Intellectual 

Property rights. She also specializes in arbitration law. With regard to 

PVR, Mia is internationally active as Secretary of the Committee for 

Novelty Protection for the AIPH. In this capacity she keeps abreast with 

all the developments within the PVR field and within UPOV, where she 

represents AIPH in its observer status. 


AGM 

The Dutch city of 

The Hague was 

host to Ciopora’s 

AGM 2014 and not 

without reason. 

As well as being 

the political centre 

of the Netherlands, 

The Hague is also 

an international 

city of law, peace 

and justice. Ideally 

located, with 

easy access to 

motorways, airports 

and public transport 

and not far from the 

Netherland’s most 

famous horticultural 

region, Westland, 

the Hague was the 

perfect venue to 

forge new plans, 

exchange ideas and 

research findings 

and to adopt 

Ciopora’s Position 

Papers on IP. 

Productive IP debate 

in realm of flowers 

Discussion on Minimum Distance in the trial station of Naktuinbouw during the business excursion 2014 in Roelofarendsveen. 

by Anna Kaehne 

Democracy comes first 

This year’s motto for the AGM 

‘Speak up, be heard!’ invited attendees 

to participate in a series of 

communication activities undertaken 

by CIOPORA in preparation to 

the AGM 2014. Whether frequent 

updates for the members in form 

of circular letters, discussions, 

feedback collection, surveys or open 

vote – CIOPORA employed all the 

available tools of open communication 

and democratic participation in 

order to update and adopt the new 

CIOPORA’s Position Papers on IP. 

Intensive debates 

At the IP Workshops dedicated to 

this task during the AGM 2014, 

open microphones were quickly 

making their way through the 

meeting rooms as the members of 

CIOPORA engaged in intensive 

debates on matters as Minimum 

Distance, EDV, Patents, Groundbreaking 

innovation, Breeders’ 

Exemption and further important 

PBR-related topics. On April 2, 

during the general discussion, the 

members further deliberated on the 

drafts of Position Papers presented 

to them over the course of the past 

months and voted for their adoption. 

As a result of the productive 

discussion four Position Papers, 

on Minimum Distance, Scope of 

the Rights, Breeder’s Exemption, 

and Exhaustion, were adopted 

unanimously. The next step for 

the association is to continue the 

discussions and the collection of 

feedback on the remaining four 

papers in preparation for their 

adoption at the AGM in Tel-Aviv 

from March 23-26, 2015 (see the 

interview with Mr. Andrea Mansuino 

& Dr. Edgar Krieger on page 

26 for a detailed discussion of the 

adopted papers). 

Although the AGM in The Hague 

was well-attended, CIOPORA hopes 

to engage even more of its members 

in the decision-making process in 

Israel next year. 

Every vote counts 

‘Representation’ was the key word 

of the opening AGM speech by 

Andrea Mansuino, the President of 

CIOPORA. Reflecting on his first 

presidency term, Mr. Mansuino 

underlined that over the past three 

years the efforts of the CIOPORA 

Board were focused on strengthening 

the representative character 

of CIOPORA and achieving of a 

solid unity among breeders in their 

positions on the crucial questions 

of IP protection for plants. Further 

on, the members were invited to 

cast their votes for President and 

Board Candidates, which, with the 

vast majority of votes, resulted in 

the second term for Mr. Mansuino 

and the election of two new Board 

members: Mrs. Wendy Cashmore 

(Plant & Food Research, New Zealand) 

and Mr. Andreas Kientzler 


(Innovaplant, Germany). With 

the newly elected members, the 

CIOPORA Board further enhanced 

its geographic representation and 

professional expertise. A farewell 

and gratitude were expressed to 

Mr. Focco Prins, who left the 

Board after three years of active 

service. Personnel changes were 

also reported by the Crop Section 

Fruit, who elected Mrs. An van den 

Putte (Better3Fruit, Belgium) as its 

new Chairwoman and thanked the 

founding Chair Mrs. Dominique 

Thévenon for her enormous contribution 

to the work of the Section. 

All hands on deck 

The hard work at the day-time 

meetings was rewarded by the 

AGM Dinner on board the historic 

transatlantic ship ss Rotterdam. 

The members and special guests 

were invited to relax and network 

while enjoying a spectacular sunset 

on the Maas. 

Fresh fodder for the 

brain - IP from beyond 

our own backyard 

Sometimes a brief glance from 

outside of one’s box can serve as a 

productive source of inspiration. 

The main motivation for CIOPORA 

to organize the Open Part of its 

AGM was to provide the members 

and guests with insights into the 

IP practices “beyond their own 

backyard”. This year the Open Part 

touched upon two “close” and one 

external topic: the specifics of the 

application of the Nagoya protocol 

Left to right: Mr. Bart Kiewiet (Vondst Advocaten, past President 

of CPVO), Mr. Antonio Villarroel (CIOPORA Board, Geslive) and 

Mr. Martin Ekvad (President of CPVO) on board ss Rotterdam. 

CIOPORA unites breeders from all parts of the world: (left to right) Mr. Burgert van Dyk (Sapo Trust, South Africa), 

Mrs. Wendy Cashmore (Plant & Food Research New Zealand) and Dr. Jan de Riek (CIOPORA Board, ILVO, Belgium). 

by Mrs. Anke van den Hurk 

(Plantum), the management of an 

impressive IP portfolio in the sector 

of consumer electronics by Mr. Jan 

de Visser (Philips) and the benefits 

of FRAND-licensing by Mr. Leo 

Melchers (Syngenta). 

“Driving Dutchman” - 

Fruit & Ornamental tours 

On April 3, at 6 a.m., the early 

CIOPORA birds boarded the 

buses to explore a number of very 

interesting locations in the regions 

of Aalsmeer and Wageningen. The 

business excursion ornamentals 

went on a tour through all the 

parts of floricultural supply chain, 

including the freight forwarder 

IPHandlers, the flower auction 

FloraHolland and the floral 

wholesaler Waterdrinker, whereas 

the fruit-interested colleagues 

could see and taste the delicious 

creations by the strawberry breeder 

Fresh Forward and for a brief 

moment revisit campus life at 

the Wageningen University & 

Research Center Plant Breeding. 

In the afternoon both groups 

rejoined at Naktuinbouw, where 

they were warmly welcomed by 

the General Manager Mr. John 

van Ruiter and his colleagues. 

CIOPORA would like to express 

its gratitude to all the hosts of the 

business tour 2014, which without a 

doubt became one of the highlights 

of the CIOPORA events 2014. 

Left to right: Sheryl and Anthony Tesselaar (Australia) 

and Peter Ilsink (Interplant Roses BV), past President of 

CIOPORA. 

For more details visit www.ciopora.org 

and follow CIOPORA on LinkedIn.org 

and Facebook for the latest news on 

IP protection for plant innovations and 

updates regarding the CIOPORA AGM 

2015 in Tel-Aviv. ||| 


Anna Kaehne is a Manager Public Relations & 

Communications at CIOPORA. She is responsible 

for the association’s internal and external 

communications including the relations with press, 

production of media and marketing materials offline 

as well as online. She is the person behind the 

CIOPORA Chronicle, association’s newsletter, press 

releases, website and other communication projects. 

Anna holds a Magister Degree in English and 

Slavic Studies from the University of Magdeburg, 

Germany. In her homeland – Ukraine – she studied 

Inter national Law at the National Law Academy of 

Ukraine in Kharkov. 


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foster the objectives, purposes and policy of the 

association, but do not fulfil the requirements 

for membership in CIOPORA? Please contact 

CIOPORA at the address as featured on this 

page. CIOPORA’s current Supporters are: 

Agri Information Partners, Distel Software, 

Hawita Gruppe, Family Tree Farms, FloraCulture 

International, André Briant and Nevado Roses. 

For further information about 

CIOPORA please contact the 

administrative office in Hamburg. 

CIOPORA 

P.O. Box 13 05 06 

D-20105 HAMBURG, GERMANY 

T (49) 40 555 63 702 

F (49) 40 555 63 703 

www.ciopora.org 

info@ciopora.org 


The CIOPORA 

Chronicle is a 

special edition 

of CIOPORA 

and the monthly 

business magazine 

on worldwide 

floriculture 

FloraCulture 

International. 

All rights 

reserved © 2014. No portion of editorial may 

be reproduced in any form without written 

permission of the publisher. Publisher is not 

liable for advertisements using illegally obtained 

images. 

Editorial & Administration Offices 

FloraCulture International 

Business address: ECA Office 140-21, Legmeerdijk 313, 

1431 GB Aalsmeer, the Netherlands 

Postal address: Postbus 1081, 1430 BB Aalsmeer, the Netherlands 

T (31) 297 769 095 

Editor-in-chief: Ron van der Ploeg (ron@floracultureinternational.com) 

Editor: Anna Kaehne (anna.kaehne@ciopora.org) 

With the kind assistance of Dr. Edgar Krieger (edgar.krieger@ciopora.org) 

Contributing writers: Tim Briercliffe, Mia Buma, Herman de Boon, 

Bruno Etavard, Gerry Grueber, Maxine J. Horn, Anna Kaehne, Jaap Kras, 

Dr. Edgar Krieger, Pieter Kroese , Thomas Leidereiter, Andrea Mansuino, 

Lucas Michels, Nicola Novaro, Desmond O’Rourke, Ron van der Ploeg, 

Chris Prescott, Dean Rule, Omer Schneider, Ingrid Slangen, 

Natalya Stetsenko, An Van den Putte and Dr. Tom Wittop Koning 

Photography: FloraCulture International and CIOPORA 

Cover photograph: Evgeny Makarov 

Publisher: FloraCulture International 

(jaap@floracultureinternational.com) 

Printer: SDA Print+Media 

Designer: Dirk van der Burgh 

Advertising Sales Offices 

Angie Duffree (angie@floracultureinternational.com) 

T (31) 297 769 095 

Advertising Index 

COMPANY PAGE WEBSITE 

CIOPORA .......................................................................6, 50 ......................................www.ciopora.org 

Conard-Pyle Co. .............................................................3 .............................. www.conard-pyle.com 

Danziger “Dan” Flower Farm .....................................2 ......................................www.danziger.com 

Fides .................................................................................11 ................................................ www.fides.nl 

Innovaplant .....................................................................35 .........................................www.kientzler.eu 

IRBA (Int. Rose Breeders Ass.) .................................18 ........................................www.ciopora.org 

Meilland International .................................................52 .................................... www.meilland.com 

COMPANY PAGE WEBSITE 

NIRP International ........................................................25 .....................www.nirpinternational.com 

Pakharenko ....................................................................35 ..............................www.pakharenko.com 

Royalty Administration International.......................51 ..........................www.rai-worldwide.com 

Selecta Klemm GmbH & Co. KG ...............................32 ..............................www.slectaworld.com 

Vondst Advocaten .........................................................8 ................................ www.vondst-law.com 

Würtenberger Kunze ....................................................8 ...............................................www.wk-ip.eu 

This index is provided as a service to our readers. The publisher does not assume responsibility for errors or omissions. 

Visit FloraCulture International advertisers on the internet by linking to their websites from our Digital Online Advertiser Index at 

www.floracultureinternational.com. For readers who do not have internet access, please send your request for additional information from 

any of our advertisers to FloraCulture International (P.O. Box 1081, 1430 BB Aalsmeer, The Netherlands). Be sure to include 

your name, company name, address, faxnumber and the name(s) of the companies about which you would like to receive additional information.

2014 CIOPORA Chronicle

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