South Africa is known internationally for its abundant flora. South African plant breeders regularly win awards at an international level for their unique and beautiful cultivars. From roses to aloes to all manner of drought-resistant and “South Africa friendly” flowers, the plant-related IP landscape in our country is one of huge potential. So, the question may arise as to whether all of this expertise, creativity, innovation and passion in the South African “plant community”, can be rewarded in the form of trade mark rights, being exclusive rights, for plant names?
In short, it is not possible to register a plant name itself as a trade mark. However, the trade marks (e.g., brand names) used to market new plant varieties certainly can be registered and are often novel, fanciful, delightfully whimsical and absolutely worthy of trade mark protection. A trade mark, after all, distinguishes the goods or services to which it is applied, or for which it is used, from the goods or services of other parties. A trade mark affords its owner an exclusive right to use and exploit the mark. Garden enthusiasts across the country will agree that they know the brand names used in relation to certain new plants well, and associate those names with the plants and their source, being the plant breeders that created them. One of the best known “plant” trade marks is PINK LADY, used in relation to apples, the actual varietal name of which is “Cripps Pink”. Cripps Pink is a type of apple, but PINK LADY is a brand name, or trade mark, used by the proprietor thereof and its licensees in relation to Cripps Pink apples.
Thoughts may then turn to the plants themselves, and whether they can be protected. Again, plant breeders spend a great deal of time, energy and effort in creating new plant varieties and one of the underlying aims of intellectual property law is to protect and reward innovation. Why then not also innovation, which in many instances is a true labour of love brought to life, quite literally, by green fingers, in the plant space?
The Plant Breeders’ Rights Act, 1976 (the “PBR Act”) provides for registration and protection for new plant varieties against exploitation without the permission of the owners of the registered plant breeders’ rights. In order to register a plant variety, it must be new, distinct, uniform and stable, and the PBR Act expands upon these particular requirements. Once a variety is approved, a plant breeders’ right certificate will be issued by the Registrar for Plant Breeders’ Rights. The registration will be valid for 25 years for vines and trees, and 20 years for annuals. The owner of the registration can then protect its rights. Section 23 of the PBR Act provides that the proprietor of a registered PBR has the exclusive right to undertake various activities in relation to the relevant plant variety, including the production or reproduction, conditioning for the purpose of propagation, sale or any form of marketing, exporting, importing stocking for any of the abovementioned purposes, propagating material of the relevant variety or harvested material, including plants, which was obtained through the unauthorised use of propagating material of the relevant variety. Section 23A of the PBR Act, provides that a PBR shall be infringed by, among others, a person who, not being the holder of the PBR, performs or causes to be performed an act contemplated in terms Section 23 of the Act (as set out above), without a licence. Infringement of these provisions can attract harsh penalties, including criminal proceedings and significant compensation, per infringing plant.
A rose, therefore, by any other name, may smell just as sweet, but protecting the brand name used to promote the plant, and the new variety itself through a PBR registration, is an important step for breeders to take in securing their rights and ensuring that they are rewarded for their efforts without unauthorised exploitation, lest we risk innovation running dry and our gardens losing the joyful benefit of their work.
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