If you have applied for, or been granted, Plant Variety Rights, it is very much in your interest to make this known to the public when you sell or offer propagating material, including whole plants for sale.
Plant and seed labels and any advertising material should clearly show that the variety is protected under the Plant Variety Rights Act 1987 or 2022. If you do not take all reasonable steps to ensure that this is done, then you may not be entitled to receive damages through legal proceedings against anyone infringing your Rights.
However, you must take care with the wording of advertising material and seed or plant labels. Under the Plant Variety Rights Act 1987, it is an offence to falsely represent that a variety is protected or subject to an application for a grant.
In your own interest as a Rights holder, make sure you always use the approved variety denomination when you or your agents or licensees sell propagating material of the protected variety.
Here are some guidelines for wording that should protect your interests as a Rights holder:
If you have not made a Rights application and you don't hold a current grant of Rights:
You may not use the word "Protected" or any wording that might imply that the variety is protected under the Plant Variety Rights Act 1987 or Plant Variety Rights Act 2022.
If you have made a Rights application, but the Commissioner has not reached a decision:
You may use any of the suggested wordings below, depending on the Act under which you have applied:
- “Provisional PVR protection”
- “Provisional Plant Variety Rights Protection”
- “Provisionally protected under NZ Plant Variety Rights Act 1987” or “Provisionally protected under NZ Plant Variety Rights Act 2022”
You may not use the wording "Plant Variety Rights pending" or any wording which implies that Rights will be granted. Such wording is misleading because it anticipates a favourable decision from our Office.
If the variety is protected by a grant of Plant Variety Rights:
You may use any of the suggested wordings below, or any words to this effect, depending on the Act under which you have applied:
- "Protected by NZ Plant Variety Rights"
- "Protected under NZ Plant Variety Rights Act 1987" or "Protected under NZ Plant Variety Rights Act 2022"
Requirements for naming and labelling varieties
The requirements for naming and labelling plant varieties are set out in Section 22 (a) and (b) of the Plant Variety Rights Act 1987, and in Section 26 (1) and (2) of the Plant Variety Rights Act 2022.
- 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 1987 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.
Trade marks and plant variety names
What is a variety denomination?
The denomination is the name of a plant variety as legally recognised under the New Zealand Plant Variety Rights Act 1987 and 2022. Every application for a Plant Variety Right must propose a denomination for the new variety. The denomination should conform to internationally accepted guidelines. The name cannot be directly descriptive of any characteristic the new variety possesses and should not include comparatives or superlatives like 'increased' or 'better'. If the proposed denomination is not acceptable, the Commissioner will reject it and require the applicant to propose an acceptable alternative.
The International Union for the Protection of New Varieties of Plants (UPOV) has developed some recommendations regarding variety denominations. For more information, go to our section on UPOV recommendations:
UPOV recommendations for variety denominations
What is a trade mark?
A trade mark is a unique identifier, such as a 'brand' or 'logo', that is used to distinguish one trader's products or services from a competitor's products or services. Trade marks can include words, logos, colours, sounds, smells – or any combination of these.
Once a trade mark is registered, the ® symbol can be legally used against the trade mark. A ™ symbol indicates that a trader is using a sign as a trade mark but does not indicate that a sign is registered.
Can a trade mark be accepted as a variety denomination or vice versa?
No, a denomination cannot be registered as a trade mark or a denomination used as a trade mark for plants or plant material. IPONZ will search the Plant Variety Rights Register, and the Plant Variety Rights Office will search the New Zealand Register of Trade Marks (Class 31 which includes agricultural, horticultural and forestry products, grains, seeds, live plants and flowers) before accepting a trade mark application in class 31 or a proposed variety denomination.
Can a trade mark be added to the denomination of a protected variety?
Yes. Under the New Zealand Plant Variety Rights Act 1987 and 2022 anyone selling seeds or plants of a protected variety may associate a trade mark with the denomination, provided the denomination is always used and clearly recognisable. For example, Rose variety 'Macrexy', protected under the PVR Act, grant number 318, was sold using the trade mark Sexy Rexy™.
Can the name of a variety not protected by a PVR be registered as a trade mark?
A trade mark will not be eligible if it merely indicates the kind, quality, origin, intended purpose or dollar value of the goods for which registration is sought. A recognised plant cultivar name may not be acceptable as a trade mark due to common usage. A colloquial or taxonomic term used to describe a botanical characteristic of plants or plant material may also not able to be registered. For example, the terms 'bloom' or 'creeper' or the name of a plant genus such as Dahlia may not be registrable as trade marks for plant varieties.
What are the rights of a registered trade mark owner?
The registration of a trade mark gives the owner the exclusive right to use the trade mark within New Zealand. The initial registration period lasts for 10 years and the right is renewable every 10 years thereafter. Trade marks can be bought, sold or licensed like other intellectual property assets.
What are the rights of a registered plant variety rights owner?
The grant of a Plant Variety Right (PVR) gives the owner the exclusive right to produce for sale, to sell and commercialise propagating material of the variety within New Zealand.
Under the Plant Variety Rights Act 1987, the full term of grant for a PVR is 20 years for non-woody plant varieties and 23 years for woody plant varieties. Under the Plant Variety Rights Act 2022 the full term of grant for a PVR is 20 years, or 25 years for woody plant varieties, root stocks, or potatoes.
An annual grant fee (renewal fee) must be paid in order to renew the grant and allow this to remain in effect. Payment of this renewal fee is due each year on the anniversary of grant.
PVRs can be bought, sold and licensed like other intellectual property assets.
Who enforces trade mark or plant variety rights?
A PVR or a trade mark is personal property and it is the responsibility of the owner to pursue any remedies for infringement.
The PVR Office is unable to provide legal advice. For more information, go to:
PVR Office and infringement actions
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. Making commercial sales before the protection application therefore 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.
Naming and trading for cultivars
Commercial horticulture and agriculture is reliant on the production of new cultivars. In order that these cultivars, and products from them, can be effectively traded their accurate identification and naming in the market place is important. This is particularly important if the cultivar is subject to or associated with intellectual property such as Plant Variety Rights (PVR) or Plant Breeders Rights (PBR).
For more information, go to:
Offences against the Plant Variety Rights Act 1987 Section 37 (3) and (4)
The PVR Office 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, and
- 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.