24 September 2019Rory O'Neill

EU General Court backs Western Australia board in plant variety dispute

US apple brand Pink Lady America has failed in its bid to have an Australian-owned community plant variety registration overturned at the EU General Court.

In its judgment, handed down today, September 24, the General Court ruled that the Community Plant Variety Office (CPVO) was correct in determining that the Western Australian Agriculture Authority’s (WAAA) Cripps Pink apple variety was novel at the time it was registered.

The legal predecessor of the WAAA, the Department of Agriculture and Food of Western Australia, originally applied to register the Cripps Pink variety with the CPVO in 1995.

In 2014, Pink Lady America filed to have the Cripps Pink registration nullified on the grounds that it lacked novelty under the EU’s Council Regulation (EC) No 2100/94 on Community plant varieties.

Under the terms of that regulation, a variety is considered ‘new’ if it has not been sold in the EU either earlier than one year before the date of application, or four years outside the EU.

In today’s judgment, the court found that the WAAA’s original application for the apple variety was made in 1995, less than one year after the regulation entered into force.

The General Court ruled that the WAAA was therefore entitled to a grace period of six years before the regulation became law in 1995 for sales of the Cripps Pink apple within the EU, or six years before the filing of the plant variety application for sales outside the EU.

The court said no evidence had been submitted showing sales of the apple variety in the EU more than six years before the regulation came into effect.

According to the court, the submitted evidence only showed use of the variety outside of the EU before the six year grace period for non-commercial purposes.

As such, the variety was still ‘novel’ when the application was filed in 1995, the court concluded.

Pink Lady America had also cited a decision of the Chilean Tribunal of Industrial Property, which found the Cripps Pink registration in that country to be void owing to a lack of novelty.

According to the General Court, however, “the CPVO and, where appropriate, the courts of the EU are not bound by a decision made in a third country”.

The Pink Lady brand is owned by US company Proprietary Variety Management, which describes itself as a “global IP and commercialisation company for new fruit varieties”.

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