Labelling protected varieties

Requirements of the Plant Variety Rights Act 1987 Section 22 (a) and (b)

• Any person who sells plants or propagating material of a protected variety must use the variety denomination, which is also referred to as the variety or cultivar name. The variety denomination is the only legal identifier for that protected variety.
• Use of commercial or trade names, in addition to the variety denomination, is acceptable when the denomination is present on the label and clearly recognisable. You cannot sell plants of a protected variety or a variety for which protection has expired using an associated trade or commercial name without indicating the denomination.
• Any person who represents that a plant variety is protected or protection has been applied for when this is not the case commits an offence against the PVR Act and may also breach the Fair Trading Act. If a variety is not protected in NZ, do not claim that it is. Protection in other countries has no validity here, so variety protection information on foreign sourced labels may be misleading.

Sales of the variety before a PVR application is made

• It is permitted to sell a variety in New Zealand up to 12 months before making an application without affecting the variety’s eligibility for PVR. Variety owners may wish to indicate that the owner of the variety intends to apply for PVR, but labels indicating this intention displayed after the time limit for eligibility for application has expired, are likely to be misleading. The label must not indicate that the variety is protected or imply that any protection or restriction on use or propagation applies unless an application for protection has been made.
• A variety is not protected until an application for protection is made. So, making commercial sales before the protection application runs the risk that a competitor could commercially exploit the variety, without restriction, prior to application. Once an application is made, the variety is protected and the applicant has the right to take proceedings against competitors from the date of the application.

Offences against the Plant Variety Rights Act 1987 Section 37 (3) and (4)

The PVRO can prosecute those who:

• Falsely represents that the plants or parts of plants they are selling are a protected variety or one for which an application for protection has been made

• Falsely represents that the plants or parts of plants they are selling are a protected variety or one for which an application for protection has been made when the plants are of another variety
• Wilfully or negligently sells plants or propagating material from a protected variety or a variety for which protection has expired without using the variety’s denomination or ensuring that the denomination is clearly recognisable on the plant label or elsewhere.