Who can apply

Only a breeder or successor-in-title of a new variety, or their authorised agent, can apply for Plant Variety Rights (PVR). When filing a PVR application in this way, that breeder or successor-in-title is known as the applicant or owner of the application.

Breeder

The breeder can be either:

• the person or persons who bred, discovered and/or developed the variety;
• the employer of the above persons (e.g. a company);
• a subsequent holder of the legal rights to the variety, known as a ‘successor-in-title'.

Any breeder from anywhere in the world can submit a PVR application in New Zealand. All applications must be in English or Māori, and must indicate both an address for service and a communication address in New Zealand or Australia.

Please note that if an Australian address for service is used, a New Zealand-based contact may be requested for the organisation of growing trials and related variety testing matters. Further information is available in our Variety Testing in New Zealand guidelines. 

Successor-in-title

If you are a successor-in-title of the breeder, you must maintain sufficient documentation for your variety that:

• Establishes your legal rights to the variety, and
• Provides clear evidence that the ownership of the variety has been purchased by, assigned or transferred to you.

You may be asked to provide the above documentation to your examiner in the course of your application.

Authorised agent

An application for Plant Variety Rights can be made by an agent who is authorised to act on behalf of the breeder or successor-in-title. The agent must provide the Commissioner with evidence of their authority to act, in the form of a signed Authorisation of Agent. If there is more than one breeder / successor-in-title, the agent must provide evidence of authority to act for each of those individuals.

• Authorisation of Agent Form [PDF, 211 KB]

An authorised agent may be licensed to manage the variety and act for the breeder, but they are not considered to be a successor-in-title, and must not call themselves that in the application process.

We recommend using an authorised agent that has first-hand knowledge of the new variety for this purpose. Often the individual or organisation in New Zealand who is primarily responsible for handling plant material of the new variety would be the most appropriate agent for the PVR application.

For example:

• the agent for an overseas crop variety could be a local seed company,
• the agent for a fruit or ornamental variety could be a local nursery.

The authorised agent should be able to respond promptly and effectively to official requests for plant material or the organisation of growing trials.

Time limits and key dates

Application time limits

If you have already sold material of the variety you must file your application before the time period permitted for prior sales expires. See Criteria used to determine eligibility for Rights below.

Trial closing dates

Some varieties are evaluated by our offices using central growing trials, which take place annually. If you wish to ensure that your variety is included in the coming season’s trials, you must file your application by the closing dates below.

Ornamentals

Agricultural crops

Criteria used to determine eligibility for Rights

Plant Variety Rights are presently available for varieties of any kind of plant other than bacteria.

Following international custom in the world of plant variety protection, the word "variety" is used not in the sense of a "botanical variety", but rather as being synonymous with "cultivar" or "cultivated variety".

• What is a Plant Variety?  — Union for the Protection of New Varieties of Plants

The Plant Variety Rights Act 2022 defines a plant variety as a plant grouping that:

• is contained within a single botanical taxon of the lowest known rank; and
• can be defined by the expression of the characteristics resulting from a particular genotype or combination of genotypes; and
• can be distinguished from any other plant grouping by the expression of at least one of those characteristics; and
• can be considered as a unit because of its suitability for being propagated unchanged.

As such a grant of Plant Variety Rights may be made for a variety (cultivar) if:

1. it is new (novel)
2. it is distinct, uniform and stable (commonly abbreviated to "DUS")
3. an acceptable denomination (variety name) is proposed.

The Plant Variety Rights Office will examine all PVR applications to ensure that these criteria are met. More details on our examination process and practices may be found in the pages below:

• The PVR process
• Technical guidance

1. New (Novel)

A variety is considered to be new or novel if propagating material or harvested material for the plant variety has not been sold or otherwise disposed of for the purpose of exploiting the variety with the agreement or consent of the breeder:

• in New Zealand for more than 1 year before the date of application, and
• overseas, for more than:
  • 6 years before that date, in the case of woody plants and potatoes, or
  • 4 years before that date, in the case of other non-woody plants.

Note:
The prior sale rules above do not apply where:

• the sale is part of a contractual arrangement to increase the applicant's stock, or for evaluative trials or tests where all the material produced directly or indirectly, plus any unused propagating material, becomes or remains the property of the applicant, or
• any surplus plant material produced during the breeding, increasing of stock and trials or tests of the variety is disposed of for non-propagating purposes.

2. Distinct, Uniform and Stable (DUS)

Distinct

The variety must be clearly distinguishable from any other plant variety whose existence is a matter of common knowledge at the date of application, in one or in some combination of the following characteristics:

• Morphological (such as growth habit, shape and/or colour); or
• Physiological (such as disease resistance or metabolite expression).

For more details, please see our technical guidance on varieties of common knowledge.

• Varieties of common knowledge: Identification and usage

Uniform

The variety must be sufficiently uniform. That is to say, the relevant characteristics of a specimen of the variety will be consistent with other specimens of the same variety.

Stable

The variety must remain true to its description and relevant characteristics after repeated propagation.

3. Denomination

You must propose a denomination for the new variety that conforms to internationally accepted guidelines that are maintained by the International Union for the Protection of New Varieties of Plants (UPOV).

• UPOV recommendations for variety denominations

You do not have to propose a denomination at the point where you file your application. However, you must propose a denomination within 12 months of your application date.

If the denomination you propose is not acceptable the Commissioner will reject it and ask for an acceptable alternative.

For further information about naming varieties see the Naming and labelling varieties page.

Before you begin

Before you file a PVR application, you must first confirm that you actually have a variety (cultivar). A single plant does not constitute a variety. We greatly recommend that you first successfully propagate plants of the new variety and confirm uniformity and stability before filing an application.

To begin the application process for Plant Variety Rights you will need:

1. Evidence of ownership (if the successor-in-title is other than the breeder).
   
   
2. Completed Authorisation of Agent form [PDF, 211 KB] (if applicable).
   
   
3. A completed technical questionnaire applicable to the particular genus or species.
   
   
4. A digital colour photo for every application for a fruit, ornamental, tree, or vegetable variety (including potatoes). The photo should be representative of the variety, and should illustrate, as clearly as possible, its chief distinguishing feature(s). The photo can be of the whole plant of the new variety, and/or of plant parts such as the fruit or the flowers, whichever is most appropriate.
   
   Note: Don't supply a photo of the original bred or discovered plant or, in the case of a new mutation or sport, the plant part from which the variety originated. Instead, you should supply a photo based upon plants or trees propagated from the original plant or plant part.
   
   
5. A seed sample, and germination test certificate (including a vigour test in the case of peas) no more than 3 months old, for every application for an arable crop, pasture plant, amenity grass or seed propagated vegetable variety. This must be supplied to one of the following addresses:
   
   
   • Via courier:
     AsureQuality
     South Drive
     Lincoln University
     Canterbury
     
     
   • Via standard post:
     AsureQuality
     PO Box 85006
     Lincoln 7647
     Canterbury
   
   All seed samples must be clearly labelled “For PVR purposes only”, along with the name of the variety.
   
   Seed must have biosecurity clearance before it can be accepted. If you are providing a seed sample from outside New Zealand, this seed sample must be provided to AsureQuality Ltd via a contact in New Zealand (or via a similar arrangement).
   
   Note: Submitted online applications for crops that require a seed sample will not be accepted until the date that AsureQuality Ltd receives the required seed sample.
   
   
6. Payment of the relevant fee.

Should your variety belong to an indigenous or non-indigenous plant species of significance, your application will be submitted to the Māori Plant Varieties Committee for consideration. You should be prepared to provide any additional information that may be requested by the Committee.

For further information about grass varieties please see our technical guidance documentation.

Seed requirements for grass varieties.

Apply

You may file your PVR application through any of the following methods:

• Online application: Visit our online case management facility, complete the online application form and pay the application fee. Please see below for more details on this method.
• International application: Complete your application form via UPOV PRISMA, an online application tool maintained by the International Union for the Protection of New Varieties of Plants (UPOV).

Filing your application using UPOV PRISMA will allow you to submit your application data to multiple IP offices, including IPONZ. UPOV PRISMA applications can be made for varieties belonging to any plant genus or species. If the specific technical questionnaire is not available online, please contact our office for assistance.

Contact us

If an application made via UPOV PRISMA is received at our offices, it will be given an application date that reflects the date when all New Zealand application requirements are met. This includes the payment of the New Zealand application fee based on the invoice sent to the breeder’s address for service.

Online application

Before filing a PVR application, you need to become a registered user on our website if you are not one already. This gives you access to our case management facility, which will help you manage your applications and intellectual property online. As part of your account setup, you will be required to provide an email address, which we use to communicate with you.

• Access our online services

To file a new PVR application:

1. Log in to our case management facility by selecting the Login button at the top right of this page.

2. Under the Plant Variety Rights section, select Apply for a Plant Variety Right. This will open the PVR application form.

3. Complete the information for reference and identity. (All required fields are marked with a red dot.)

• Reference section: Enter a reference for this request that you will recognise, such as “My plant variety”.
• Identity section: Select “In my own right” if this request is for you or your organisation. If you are applying on behalf of someone else select “As an Agent”, then search for the correct applicant.

4. Complete the information for your plant variety.

• Plant botanical name: Select the genus or genus and species to which your variety belongs, then its common name. If your variety belongs to a genus or species that is not on the dropdown list, please contact our office.
• Proposed denomination: Enter the denomination you would like to propose for your variety. This will be its legal identifier, and is the designation or variety name under which a grant of PVR will be made.
  • If you are applying for a PVR in more than one country, you must use the same denomination for all of these.
  • Your proposed denomination must conform to internationally accepted guidelines (see above).
  • You may defer proposing a denomination until after filing your application, but you must give a breeder’s reference or temporary designation in its place. If this is the case, you must provide a proposed denomination within 12 months of your application date.

• Breeder reference: You may enter a reference that the breeder uses to identify the variety.
• Commercial synonyms: You may enter a trade or marketing name under which you intend the variety to be commercially or commonly known. You may only enter a trade mark as a synonym if you have both the breeder’s and the trade mark owner’s consent.
• Protection: If you have made applications for the same variety in other countries, you must provide further detail here by clicking the Add button.
  • You must indicate all prior applications for protection (e.g. plant variety rights, plant variety protection, plant breeders’ rights, plant) without exception, even if these were filed in countries that are not members of UPOV.
  • For each application, you are required to provide the country / state name, application name, current stage of the application, and denomination / breeder’s reference.
• Technical examinations: Select whether technical examination for your variety has already completed, is in progress, or has not yet started. For the first two options, you will need to select the country of examination, and note the examination completion or start date.
• Sold or offered for sale: If your variety has been sold or offered for sale in New Zealand or overseas, click the Add button to provide more details. For each transaction, you are required to provide the country / state name, date of transaction, and denomination / breeder’s reference.
• Declaration: Tick the boxes to confirm that your material is representative of the variety and relevant to your application, and to authorise the exchange of information and material with relevant authorities.
• Species-specific technical questionnaire: Click the Add button to upload a copy of your completed technical questionnaire for your variety.
  • Technical questionnaires for PVR applications
• Germination certificate: Click the Add button to upload a copy of a germination certificate, if applicable.
• Photo: Click the Add button to upload photos of your variety.

5. Complete the breeder’s details for your variety.

• Breeder: If applicable, click the Search button to search for and select the breeders for your variety other than the applicant . You may need to enter the details of the breeder if they are not in our database from previous applications.
• Transfer of variety: If applicable, select how the ownership of the variety changed from the breeder to the current successor-in-title. If such a transfer took place, you will need to upload evidence of the change in ownership of the variety, or an explanation that outlines how this ownership was acquired.
• Bred in: You may click the Add button to enter the country in which the variety was originally bred.

6. Under Priority, enter the details of any convention priority claims for your variety by clicking the Add button.

• You may claim priority if you have filed an earlier application for the same variety in another UPOV member-state, no earlier than 12 months before the date of your New Zealand application.
• If you have filed more than one prior application in this way, you may only claim priority in respect of your first such application.
• You must provide the office with documentation corresponding to these prior applications within 3 months of your application date. These can either be uploaded at the point of filing your application, or provided via a later amendment request.

Note: Check your application thoroughly before submitting it. If you would like to save your application without submitting it, click the Save button. You can also generate a printout of your application by clicking the Get PDF Report button.

7. Click the Submit button. If there is an error or omission in your application form, a message will display in red at the location on the screen where the information is missing or incorrect. Otherwise this will bring you to a payment screen.

8. On the payment screen, select either Credit Card or Internet Banking, and complete the payment process. If you have a direct debit or direct credit facility loaded to your account, you may also choose either the Direct Debit or Direct Credit options.

9. Once your application has been submitted and paid for you will receive an email notification. A confirmation and summary of the application submission will also appear in the Discussion section of your IPONZ inbox.

Claiming priority

If you have already applied for rights in another country that is a member of UPOV, you may be able to claim priority based on your earlier application, under Section 44 of the Plant Variety Rights Act 2022.

• Section 44 of the Plant Variety Rights Act 2022  — legislation.govt.nz

The advantage of claiming priority is that the date of an overseas application becomes regarded in effect as the application date in New Zealand. This may give you precedence over competitors hoping to protect a similar variety.

Being the first to claim rights for a new variety is always important, but note that all application requirements (submitted and complete application page, technical questionnaire, fee, and any required seed samples or photos) must be met before an application date can be determined.

If you wish to claim priority in this way, complete the relevant convention priority claim section on the application form. You must apply for a New Zealand right within 12 months of your first overseas application if you wish to claim priority.

Note: If you have made more than one application overseas, you can only claim priority for the first application.

Next steps

See The PVR process section for more information on the application process.

Provisional protection

Provisional protection gives a variety “interim” protection, as if its rights have been granted while the application is under consideration. This provisional protection ceases if:

• The application is withdrawn;
• The application becomes lapsed due to the failure to provide required information or material by a given deadline; or
• A grant for the application is issued or refused.

One important condition is if the rights are eventually refused, the provisional protection becomes void from the start, and is treated as though this never applied.

Provisional protection applies to both applications that are under the Plant Variety Rights Act 1987 (i.e. filed prior to 24 January 2023) and applications that are under the Plant Variety Rights Act 2022 (i.e. filed on or after 24 January 2023).

If you have filed an application under the Plant Variety Rights Act 2022 and have released your variety into the market:

• This provisional protection does not entitle you to take legal proceedings against any person or organisation you consider is infringing your rights.
• You may commence legal proceedings in this way only after a grant has been issued, and infringement actions can be retrospective.

In practical terms, provisional protection means:

• If you can readily identify and distinguish the new variety, and you are reasonably certain that Plant Variety Rights will be granted, you should be confident enough to be able to exploit the new variety. After a grant is issued, this provisional protection enables you to take necessary legal action against retrospective infringements.
• If you cannot readily identify the variety, or if you doubt that it is eligible for rights, then provisional protection is of questionable value. It might therefore be wise to wait for the Commissioner's final decision before marketing the variety.