2014 CIOPORA Chronicle
CIOPORA annual magazine on Intellectual Property protection for plant innovations 2014. Produced in cooperation with FloraCulture International. Read in the 2014 issue: - Innovation bridges gap between tradition and future - Challenges of modern horticulture - IP Solutions for the Future: Creative Barcode - ‘Mission FUTURE’: CIOPORA’s position papers on IP - Enforcement reform: an Australian story - Trademarks and variety denominations - harmonization underway? and more...
CIOPORA annual magazine on Intellectual Property protection for plant innovations 2014. Produced in cooperation with FloraCulture International.
Read in the 2014 issue:
- Innovation bridges gap between tradition and future
- Challenges of modern horticulture
- IP Solutions for the Future: Creative Barcode
- ‘Mission FUTURE’: CIOPORA’s position papers on IP
- Enforcement reform: an Australian story
- Trademarks and variety denominations - harmonization underway?
and more...
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Turn your PDF publications into a flip-book with our unique Google optimized e-Paper software.
The business magazine for horticultural plant breeding<br />
JUNE <strong>2014</strong><br />
WWW.<strong>CIOPORA</strong>.ORG<br />
<strong>CIOPORA</strong> POSITION<br />
PAPERS ON IP<br />
Interview with Andrea Mansuino<br />
and Dr. Edgar Krieger<br />
IP SOLUTIONS<br />
FOR THE FUTURE<br />
Creative Barcode<br />
MISSION ‘FUTURE’<br />
The best way to predict<br />
future is to create it<br />
(P. Drucker)
Table of Contents<br />
07<br />
Innovation bridges gap<br />
between tradition and future<br />
10<br />
The importance<br />
of being different<br />
12<br />
Challenges of<br />
modern horticulture<br />
16<br />
Crop Sections as<br />
backbone<br />
of the association<br />
20<br />
IP Solutions<br />
for the Future:<br />
Creative Barcode<br />
24<br />
Combatting<br />
online trademark<br />
infringement in<br />
ornamental and<br />
fruit varieties<br />
26<br />
‘Mission FUTURE’:<br />
<strong>CIOPORA</strong>’s position<br />
papers on IP<br />
30<br />
Preparing for<br />
future markets<br />
for major fruits<br />
4 www.FloraCulture.eu | <strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong>
June <strong>2014</strong> <strong>CIOPORA</strong> <strong>Chronicle</strong><br />
33<br />
Poinsettia breeding<br />
is a world of regions<br />
34<br />
Patents - a fruitful<br />
alternative for PVRs?<br />
36<br />
Trademarks and<br />
variety denominations<br />
- harmonisation<br />
underway?<br />
38<br />
Protecting Plant<br />
Variety Rights in<br />
Ukraine<br />
39<br />
Breeding,<br />
imagination and<br />
market vision<br />
40<br />
Enforcement reform:<br />
an Australian story<br />
42<br />
Different Italian<br />
routes against<br />
counterfeiters<br />
44<br />
Ecuador: changes<br />
are in the works<br />
46<br />
Growers’ perspective<br />
on the role of<br />
effective IP protection<br />
48<br />
Productive IP debate<br />
in realm of flowers<br />
<strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong> | www.FloraCulture.eu 5
<strong>CIOPORA</strong> Members<br />
Aris®<br />
BallFloraPlant<br />
0-C, 91-M, 76-Y, 0-K (red) 100-C, 0-M, 91-Y, 6-K (green)<br />
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Deutschland<br />
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Become a member of <strong>CIOPORA</strong><br />
<strong>CIOPORA</strong> is an international, non-governmental organisation<br />
representing the interests of breeders of asexually reproduced<br />
ornamental and fruit varieties worldwide. <strong>CIOPORA</strong> has currently<br />
117 members including individual breeders, breeding companies, IP<br />
lawyers and royalty administration services. Top priority of <strong>CIOPORA</strong><br />
is the constant development and enhancement of systems of Intellectual<br />
Property Protection for plant innovation, which include Plant Breeders’<br />
Rights, Patents, Plant Patents and Trademarks. <strong>CIOPORA</strong> acts as a<br />
strong voice of the industry in regard of IP protection. The association<br />
enjoys the observer status at the Community Plant Variety Office<br />
(CPVO) and the International Union for the Protection of New<br />
Varieties of Plants (UPOV).<br />
The Board invites you to join <strong>CIOPORA</strong>’s global member community.<br />
The persons eligible for membership are defined in the <strong>CIOPORA</strong>’s<br />
bylaws. Each member candidacy is subject to approval by the<br />
<strong>CIOPORA</strong> Board.<br />
More information about membership: www.ciopora.org.<br />
Contact us: info@ciopora.org<br />
Tel: +49 (0)40-555-63-702 or Fax: +49 (0)40-555-63-703<br />
6 www.FloraCulture.eu | <strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong>
From the President<br />
Innovation bridges<br />
gap between<br />
tradition and future<br />
Andrea Mansuino.<br />
This year, the Ciopora <strong>Chronicle</strong> features Alice in Wonderland on its front cover. You may ask<br />
why?<br />
Named after the young protagonist of Lewis Carroll’s book, the Alice-in-Wonderland syndrome<br />
is a disorienting condition that affects human perception. Sufferers may experience size distortion of<br />
other sensory modalities that make them believe that the world around them is bigger than reality.<br />
We, breeders, seem to suffer from this syndrome sometimes. We dream with our eyes wide open, we watch<br />
reality and see it differently, often bigger or more colourful. We have visions and work hard to make<br />
them a reality, sometimes only with our imagination to guide us.<br />
<strong>CIOPORA</strong> was founded in 1961 in Geneva. I am proud to say that my father co-signed the bylaws<br />
that established the specific rules of guidance by which the newly formed association was to<br />
function. I am equally proud to be the fourth generation of the Mansuino family of plant breeders<br />
who have worked tirelessly for decades developing innovation, with an inexhaustible passion<br />
and drive. I fully agree that breeding, propagating, growing and trading flowers is a business.<br />
But innovation, in whatever business and area of human interest, cannot only be motivated by<br />
economic targets. As there cannot be economic development without research and innovation,<br />
I believe that there cannot be innovation without a vision, without inspiration, passion, culture,<br />
tradition, emotions, intelligence, and love.<br />
Innovation has its roots in tradition, because it changes what already exists into something new<br />
and, possibly, something better. Innovation looks into the future, because it only takes shape after<br />
the creator has developed a clear vision, and worked hard in order to make it real.<br />
I vividly remember how enthused my father, aunts and great-uncle were about new colours and<br />
flower shapes, showing me black and white pictures of new carnations and small-flowered roses<br />
that boasted much more colour than the best 3D screen images of today.<br />
I was a child, but from that moment on I had decided that my destiny was to follow in my family’s<br />
footsteps, to keep dreaming and working for dreams to come true.<br />
Times have changed. For today's plant breeding is not about beauty alone. The breeders are also<br />
interested to know whether a new variety can be considered clearly distinguishable from another<br />
one, thus deserving own protection even if the colour on the back of a leaf is somewhat greener or<br />
thorns are slightly more curved. Nowadays, innovation consists of snatching away a gene from a<br />
cabbage and plugging it into a daisy.<br />
Have times really changed? Maybe not. Ornamental plant breeding continues to be a world of<br />
highly visionary entrepreneurs. Still, many breeding companies (whether small or big) do believe<br />
that innovation is the expression of a vision and needs to be rewarded and protected.<br />
There is a reason why children at school still study history. Because they learn how to shape their<br />
future thanks to experiences and visions of their ancestors.<br />
>>><br />
<strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong> | www.FloraCulture.eu 7
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From the President<br />
Breeder’s meeting at Sanremo-based<br />
Mansuino Nurseries. The year was 1956.<br />
Left to right: Harry Wheatcroft (Wheatcroft<br />
Roses, UK), Vittorio Barni ( Rose Barni,<br />
Italia), Quinto Mansuino (Mansuino Rose,<br />
Italia), Gene Boerner (Jackson & Perkins<br />
Roses, U.S.A.), Ada Mansuino (Mansuino Rose,<br />
Italia), Domenico Aicardi (Rose Aicardi,<br />
Italia), Alain Meilland (Meilland International,<br />
France). Photo credits: from the Mansuino<br />
private photograph collection.<br />
There is also a reason why <strong>CIOPORA</strong> today advocates for a better protection for innovation, and<br />
for a deeper respect for those who have really improved the world of plants and continue to do<br />
so. Inside our association we have been discussing and debating for years now, the importance<br />
of granting a strong protection to innovative varieties, and also about the need to create a fair<br />
environment for those who are granted a protection title for their new varieties, and obviously want<br />
to exploit their rights and enforce them against piracy and plagiarism.<br />
As we will read in this fifth edition of the <strong>CIOPORA</strong> CHRONICLE, our recently held Annual<br />
General Meeting in The Hague, was a very important and extremely successful one. For four days,<br />
our members exchanged ideas and research findings while participating in IP workshops and in<br />
the full audience session about innovation, its effective protection, progress and vision.<br />
A survey made by an external advisor has outlined weaknesses and strengths of <strong>CIOPORA</strong>, and<br />
this has been the basis for discussion on where we want to see our organisation in five years from<br />
now. Constructive criticism will carry productive consequences, and we will all work together to<br />
improve our ‘family’.<br />
The debate on the new position of <strong>CIOPORA</strong> on Intellectual Property has brought significant<br />
results, and members have agreed on <strong>CIOPORA</strong>’s position, including many fundamental aspects<br />
for a better protection of innovation. The new <strong>CIOPORA</strong> Board will now include members from<br />
Europe, the USA and Oceania with a very well balanced composition that covers many countries<br />
and many different fruit and ornamental crops. I am very positive about the future of <strong>CIOPORA</strong>.<br />
We have made big steps towards the future, without forgetting tradition.<br />
In a way, today’s <strong>CIOPORA</strong> is like its breeder members, deeply rooted in tradition and with a clear<br />
vision for the future. We all agree that innovation bridges the gap between tradition and future!<br />
Not only Alice but also <strong>CIOPORA</strong> and the breeders’ community as a whole share the same<br />
syndrome. We see the world around us as bigger, more colourful and more promising. A vision<br />
where, in the future, innovation will be stimulated by a system of rewards and a safe environment<br />
for our rights.<br />
<strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong> | www.FloraCulture.eu 9
Opinion<br />
The importance<br />
of innovative<br />
breeding, not only<br />
for horticulture but<br />
also for the society<br />
at large cannot be<br />
stressed enough.<br />
The importance<br />
of being different<br />
by Jaap N. Kras<br />
Seen from the commercial<br />
viewpoint, the urge to differentiate<br />
yourself and your<br />
products in the marketplace has<br />
grown tremendously. Western<br />
markets are showing market saturation<br />
in ornamentals, so the pressure<br />
to reinvent flower shops and garden<br />
centres increases. Meanwhile,<br />
consumers have lost their taste for<br />
fresh fruits, urging fruit growers to<br />
promote consumption by bringing<br />
new and different varieties onto the<br />
market.<br />
Main message<br />
Over the past decades, we have<br />
learned that there are basically two<br />
methods of selling your product:<br />
being cheaper than your competitor<br />
or being unique. For years, the<br />
pressure of competition forced<br />
growers to produce larger volumes<br />
for a cheaper price with a major<br />
focus on efficient production.<br />
As a result, breeders launched<br />
new varieties that featured a faster<br />
growth and higher yield per m².<br />
There are many examples, but a<br />
quick look at the current range of<br />
available tulips, Gerberas, roses,<br />
Chrysanthemums and even<br />
Phalaenopsis is sufficient to<br />
demonstrate this tendency.<br />
Higher productivity is the<br />
ornamental breeding industry’s<br />
motto. But the truth is that while<br />
increasing labour costs will force<br />
the industry to further automatise,<br />
growers in general are no longer<br />
able to produce more and at lower<br />
costs. Being different is the main<br />
message for the future.<br />
Reviving crops<br />
When the life cycle of a product<br />
comes to an end, new products<br />
have to be introduced, whether it is<br />
new challenging crops or improved<br />
varieties of already existing cash<br />
crops. The success of Hydrangea,<br />
Ranunculus and Phaleanopsis<br />
over the last decades is a perfect<br />
Rose breeders perfectly understand the importance of being different<br />
(Photo credits: Roses Forever).<br />
example of how growers successfully<br />
introduced new crops, how<br />
varieties constantly change and<br />
revive the existing rose, tulip, lily<br />
and Chrysanthemum industries.<br />
Currently, we are blessed with an<br />
enormously wide range of products<br />
with plenty of new crops making<br />
us stand out among our competitors.<br />
To stimulate professional<br />
breeding, the breeders should be<br />
offered a reasonable return on<br />
investment. Individual breeders<br />
are often family-based, small to<br />
medium sized companies with little<br />
influence on governmental and<br />
institutional decisions from the EU<br />
or the UPOV. So the cooperation of<br />
breeders in industry associations is<br />
necessary to provide guarantees for<br />
the future.<br />
<strong>CIOPORA</strong> in search<br />
of answers<br />
At the beginning of April, I had the<br />
honour to visit <strong>CIOPORA</strong>’s Annual<br />
General Meeting in The Hague,<br />
the Netherlands. Two topics on<br />
the agenda of the <strong>CIOPORA</strong> IP<br />
Workshops caught my attention:<br />
EDV and Minimum distances.<br />
The questions that arose during<br />
the course of the discussion on<br />
these topics included: When do we<br />
have a new variety and does this<br />
new variety fall under the scope of<br />
protection of an existing variety?<br />
In my opinion, both subjects are<br />
two different angles of the same<br />
problem that should have been<br />
solved when the UPOV convention<br />
on Plant Breeders’ Right was signed<br />
in 1961. A third subject on the<br />
agenda was the ‘exhaustion’, since<br />
in certain situations exhaustion can<br />
be a threat for the breeder.<br />
Wider distance<br />
between varieties<br />
A wider distance between varieties<br />
is the general answer. Often people<br />
give the example of a grower who<br />
accidentally has found a mutant in<br />
his flower bed or greenhouse. The<br />
saying goes as follows: a grower purchases<br />
starting material of a protected<br />
variety, pays the royalty fee and<br />
drives home to grow flowers. After<br />
planting he comes across a mutant.<br />
He can now apply for a new PBR<br />
10 www.FloraCulture.eu | <strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong>
on this mutant without having<br />
to do anything else, but realising<br />
that a new mutant is an improvement<br />
and has a commercial value.<br />
The breeders claim this mutant<br />
should fall under the rights of the<br />
original title owner. If we widen the<br />
minimum distances between varieties,<br />
most mutants will fall under<br />
the right of the original applicant.<br />
Indeed, this happens sometimes<br />
and such mutants cause problems.<br />
But other breeders are worse.<br />
EDV<br />
What does history teach us? As<br />
soon as a breeder introduces a new,<br />
original and commercially successful<br />
variety, many other breeders<br />
jump on the band wagon and, with<br />
the breeders exemption in their<br />
hand, start breeding with this new<br />
variety in order to create a very close<br />
‘relative’ of the already successfully<br />
introduced variety.<br />
To close this gap, the 1991 act of<br />
UPOV introduced the concept of<br />
EDV - a horse behind the carriage.<br />
Indeed, you can have a new PBR<br />
on that variety, but as your variety<br />
is essentially derived from another,<br />
already protected variety, you still<br />
need the permission of the title<br />
holder of the initial variety. My<br />
answer is that EDV is an impractical<br />
classroom solution. First, we had<br />
one problem: is the new variety<br />
different enough to grant the<br />
variety a new PBR? EDV doubles<br />
this problem: not only do we have a<br />
new variety, but the next question<br />
is whether this new variety is essentially<br />
derived from an existing<br />
variety?<br />
It’s time to develop a system<br />
that will help us to accept wider<br />
distances between varieties. EDV<br />
makes the problem, which UPOV<br />
tried to solve with the introduction<br />
of it, twice as big.<br />
There are more strange rules in the area of Plant Variety<br />
Rights. First, included in the text of the Convention<br />
and in the laws is a rule that also stipulates that existing<br />
varieties can be protected by a PBR as long as they are<br />
not commonly known. Then, this stupidity is rectified<br />
by making an even more questionable rule. Plant<br />
Breeders’ Rights can only be granted to those, who have<br />
performed breeders’ activities.<br />
Where does it all end?<br />
The general meeting of <strong>CIOPORA</strong> adopted a paper on<br />
Minimum Distance that gives hope that this neverending<br />
discussion might end: sufficient minimum<br />
distances between varieties, clear distinguishability,<br />
which implies a sufficiently broad distance between two<br />
varieties in regard to their important characteristics for<br />
the crop in question. |||<br />
About the author<br />
Jaap Kras is an industry veteran and owner<br />
and publisher of FloraCulture International.<br />
www.fides.nl
Opinion<br />
It is no secret that<br />
since the Industrial<br />
Revolution our world<br />
has been changing<br />
rapidly, constantly<br />
challenging the<br />
society and the<br />
world economy to<br />
swiftly adapt to the<br />
new circumstances<br />
and the latest<br />
technology. This has<br />
been an evolutionary<br />
process: those who<br />
remained ignorant<br />
to the persistent<br />
ticking of the clock,<br />
those who failed<br />
to recognise new<br />
opportunities and<br />
to metamorphose<br />
in accordance<br />
to the changing<br />
environment,<br />
often found<br />
themselves outrun<br />
by the time and<br />
the system. Today<br />
is no exception<br />
as our digitalised,<br />
urbanised,<br />
globalised and a<br />
somewhat greener<br />
society unfolds<br />
itself before our<br />
eyes. The Ciopora<br />
<strong>Chronicle</strong> asked four<br />
horticultural experts<br />
to share their views<br />
on how the latest<br />
tendencies of the<br />
social and economic<br />
development are<br />
affecting the green<br />
sector and how<br />
it should react<br />
to the changing<br />
circumstances.<br />
Challenges of<br />
modern horticulture<br />
Stepping up to the challenge of digital<br />
Most breeders today maintain<br />
a website, but miss out on the<br />
opportunity to effectively use<br />
the internet for their marketing<br />
activities. Many websites<br />
are poorly structured and<br />
outdated. In a world where<br />
people rely on the internet for<br />
information, there is an urgent<br />
need for breeders to step up<br />
their online game in order to<br />
stay competitive and gain a<br />
better understanding of their<br />
customers’ preferences.<br />
Social media<br />
isn’t the solution<br />
Many companies turn to social<br />
media in order to inform potential<br />
clients about their products. A recent<br />
report (E-commerce Quarterly<br />
EQ4 2013 by Monetate) on the<br />
usefulness of social media states that<br />
social media are not effective for<br />
business-to-business (B2B) promotional<br />
activities. When professionals<br />
are looking for products online,<br />
they start at Google.com (or another<br />
search engine), rather than passively<br />
checking Facebook updates.<br />
by Pieter Kroese<br />
Overview of product interest from buyers of the Russian Federation<br />
(April <strong>2014</strong>). Individual percentages reflect total percentage of inbound<br />
search from the Russian Federation on FlorAccess.com<br />
Measuring search<br />
behaviour leads to<br />
insights<br />
If you knew what your potential<br />
clients are looking for, wouldn’t<br />
that create valuable insights for<br />
your business? Wouldn’t it be<br />
wonderful to see how interested the<br />
Turkish or UK market is in your<br />
new creations? What would really<br />
benefit the horticulture industry is<br />
to collaborate and create a common<br />
platform: a central place on the<br />
internet where everyone’s assortment<br />
can be found and that could<br />
be used to aggregate and analyse<br />
search behaviour. Such a platform<br />
captures more data than individual<br />
websites simply because it offers<br />
a much wider assortment.<br />
Subsequently it allows you to<br />
understand what your customers<br />
are looking for.<br />
It’s already happening…<br />
We have developed FlorAccess.com<br />
with the sole goal to bridge exactly<br />
this gap for the floriculture supply<br />
chain. It informs buyers from<br />
around the world about assortment,<br />
availability and source. It is<br />
independent and allows all parties<br />
throughout the supply chain to<br />
inform the market about their<br />
products, novelties and availability.<br />
It produces and distributes<br />
12 www.FloraCulture.eu | <strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong>
Making sustainability a reality<br />
information about product<br />
preferences in all the corners<br />
of the globe based on search<br />
behaviour, which facilitates<br />
the B2B chain in assessing<br />
where to direct marketing and<br />
logistical activities.<br />
Get valuable<br />
information to boost<br />
your business<br />
So once we understand what<br />
people are looking for, how will<br />
this benefit the industry? Just<br />
think of the amount of time<br />
and money spent on product<br />
development in horticulture.<br />
There are few industries where<br />
product development is still<br />
so disconnected from a true<br />
understanding of the demand.<br />
The internet can’t shorten the<br />
cycle of product development,<br />
but it can provide valuable<br />
customer input along the way<br />
and accelerate introduction<br />
of new varieties by informing<br />
the right channels at the right<br />
time. When used effectively,<br />
this is how floriculture companies<br />
can use the internet to<br />
adapt to their rapidly changing<br />
environment. |||<br />
About the author<br />
Pieter Kroese is managing<br />
director of FlorAccess.com.<br />
Before becoming involved<br />
with FlorAccess in 2012, Pieter<br />
had held various strategic<br />
management positions and had<br />
been active in both the fruit<br />
& vegetables and floriculture<br />
industries.<br />
Plants are good for the<br />
environment. They play a crucial<br />
role in the functioning of our<br />
world and, rather than causing<br />
environmental problems, are<br />
one of the key weapons in the<br />
battle against global warming<br />
and many more of the worlds’<br />
problems. With this huge benefit<br />
on the side of the industry it<br />
becomes even more important<br />
to ensure plant production<br />
measures up to ever increasing<br />
sustainability standards.<br />
Expectations come from NGO<br />
campaigners, retailers, legislation,<br />
certification schemes and business<br />
corporate responsibility. Key challenges<br />
relate to the management of<br />
scarce resources and the avoidance<br />
of environmental pollution. Specific<br />
challenges vary between countries<br />
and continents.<br />
Water<br />
For many countries the scarcity<br />
of water, possibly linked with<br />
climate change or other practices,<br />
is a significant challenge that<br />
could lead to some areas being<br />
unable to produce crops as ‘higher<br />
priority’ users take precedence. The<br />
need for production to be water<br />
efficient, without costing so much<br />
that it reduces viability, is a major<br />
challenge for many producers as is<br />
the threat of water restrictions on<br />
the end customer.<br />
by Tim Briercliffe<br />
Growing media<br />
The industry is also frequently<br />
questioned on its use of other<br />
natural resources. The sustainability<br />
of growing media and the<br />
environmental concerns associated<br />
with the use of peat is a challenge<br />
for some countries, whereas others<br />
are forced to find alternative energy<br />
sources as the cost of fuel for<br />
heating, and transport makes heated<br />
glasshouse production in some<br />
countries uneconomic.<br />
Crop protection<br />
Tighter regulatory environmental<br />
controls worldwide are also reducing<br />
the availability of pesticides. The<br />
maintenance of a robust crop<br />
protection armory is critical for<br />
growers so the challenge of quality<br />
crop production with minimal use<br />
of pesticides is a reality now that<br />
will only get tougher.<br />
With an increase in the global<br />
trade in plants many countries<br />
are becoming more aware of the<br />
threats posed by imported pests and<br />
diseases as well as non-native plant<br />
species. The industry must take a<br />
responsible approach here, ensuring<br />
only the movement of plants that<br />
do not introduce or spread pests and<br />
diseases, to avoid more movement<br />
restrictions in future. Consumers<br />
and governments will not tolerate<br />
a trade that damages its own<br />
environment. Pest Risk Analysis by<br />
some countries can also slow down<br />
the introduction of new plants,<br />
presenting a significant business<br />
challenge to some businesses.<br />
Waste minimisation<br />
Waste minimisation is important<br />
for business productivity but also<br />
has a significant environmental<br />
benefit. How growers deal with this<br />
issue in future is an important area<br />
and includes approaches taken to<br />
plastic plant pots where the ability<br />
to recycle and minimise carbon<br />
footprint will increasingly influence<br />
consumer purchasing behavior.<br />
Opportunities<br />
However, with challenges come<br />
opportunities. Strong environmental<br />
credentials provide business<br />
advantage as demonstrated through<br />
significant global membership of<br />
sustainability-based certification<br />
schemes. Also the benefits of<br />
green planting in urban areas,<br />
as shown through more worldwide<br />
enthusiasm for ‘Green City’<br />
concepts, will also drive this market<br />
in the future. The world needs a<br />
robust plant production industry<br />
and as long as the sector keeps<br />
addressing the challenges faced then<br />
we can all look forward to a future<br />
that is sustainable in every sense.<br />
The AIPH Environment & Plant<br />
Health Committee regularly debates<br />
these issues to find international<br />
solutions. |||<br />
About the author<br />
Tim Briercliffe is Secretary General of<br />
the AIPH, the International Association<br />
of Horticultural Producers.<br />
>>><br />
<strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong> | www.FloraCulture.eu 13
Opinion<br />
Understanding the implications<br />
of the Global Village<br />
Photo credits: Frank Bonnet<br />
Flowers, once seen as a seasonal<br />
product in European markets,<br />
have become an all year round<br />
commoditised product. It is<br />
nowadays standard to harvest a<br />
rose in Kenya today and for it to<br />
be delivered through a complex<br />
logistical network to a customer’s<br />
home almost anywhere in the<br />
world within 24 hours.<br />
The floriculture industry, populated<br />
by a diverse range of businesses<br />
contributing to the overall supply<br />
chain (from breeders, propagators<br />
and growers to shippers, whole<br />
salers, distributors, retailers and<br />
florists), today faces increasing horizontal<br />
and vertical competition in<br />
every part of its value chain due to<br />
globalisation. In particular, the industry<br />
has seen a shift of production<br />
from the developed countries and<br />
the entry of developing countries<br />
into a global trading system over<br />
the past 20 years, resulting in<br />
increasingly interdependent<br />
economies from a macro-economic<br />
perspective. This process has been<br />
accelerated by the rapid development<br />
of and access to international<br />
communications, technology,<br />
freight logistics and marketing. The<br />
recent global recession has further<br />
prompted demand for reduced<br />
prices on the floriculture market –<br />
rather than for reduced quantities.<br />
by Herman de Boon<br />
Trends & challenges in the flower value chain<br />
(CBI Centre for the Promotion of Imports from developing countries).<br />
Michael E. Porter<br />
Concepts, such as those proposed<br />
by Professor Michael E. Porter from<br />
Harvard Business School, suggest<br />
that globalisation is driven by the<br />
need of companies and national<br />
governments to maintain their<br />
market share and competitiveness<br />
through adaptive and innovative<br />
business solutions. There is a lot of<br />
evidence of numerous innovative<br />
responses to the globalisation challenges<br />
today in the fields of plant<br />
breeding, greenhouse technology,<br />
energy and water saving systems,<br />
integrated pest management,<br />
post-harvest management, waste<br />
reduction, sea transport, electronic<br />
sales platforms, distribution hubs,<br />
and supply chain optimisation.<br />
Golden triangle models<br />
‘Public – private sector – people’<br />
models are increasingly demonstrating<br />
significant benefits in the<br />
globalisation of the industry. These<br />
developments, alternatively described<br />
as “golden triangle” models,<br />
are characterised by governments<br />
creating an environment that<br />
enables innovation and knowledge<br />
sharing, with industry recognising<br />
that profitability is linked to social,<br />
environmental and financial<br />
risks and civil society adopting a<br />
monitoring role with respect to<br />
compliance and sustainability.<br />
International organisations such as<br />
<strong>CIOPORA</strong> and Union Fleurs also<br />
positively contribute to globalisation<br />
by bringing together industry<br />
players to address supply chain<br />
issues in a coordinated and precompetitive<br />
way and seeking to<br />
optimise the enabling and regulatory<br />
environment for the benefit of<br />
the value-chain. In this way issues<br />
that were traditionally dealt with on<br />
an individual basis are now brought<br />
into an international arena for<br />
discussion and resolution.<br />
Sustainability<br />
These issues are not limited to<br />
the business environment but<br />
also pertain to the social and<br />
environ mental responsibilities<br />
of the floriculture industry.<br />
Globalisation has improved the<br />
access to information and increased<br />
the demand for sustainably<br />
produced goods. To address the<br />
wider concerns of consumers, civil<br />
society and investors about where<br />
the product comes from, how it<br />
is produced, how people producing<br />
it are treated and what are the<br />
environmental and social impact of<br />
its production and do so in an efficient<br />
and responsible manner, the<br />
sector has pro-actively and increasingly<br />
engaged in coordinated and<br />
transparent schemes such as, most<br />
recently, the Floriculture Sustainability<br />
Initiative (FSI), an innovative<br />
pre-competitive multi-stakeholders<br />
platform.<br />
Opportunities<br />
Globalisation of the floriculture<br />
industry has created numerous<br />
challenges but has equally fostered<br />
many opportunities, including<br />
a greater efficiency in the supply<br />
chain and in the use of natural<br />
resources, income and lifestyle<br />
enhancement in developing<br />
economies, and increased choice<br />
and competitively priced products<br />
for consumers. The entrepreneurial<br />
and innovative capabilities of all industry<br />
players across the floriculture<br />
value-chain will determine how<br />
they are going to meet the challenges<br />
and remain profitable in an<br />
ever increasingly competitive and<br />
global business environment. |||<br />
About the author<br />
Ir. ing. Herman de Boon is president<br />
of Union Fleurs, the International<br />
Flower Trade Association,<br />
since <strong>2014</strong> and chairman of VGB<br />
(Vereniging van Groothandelaren<br />
in Bloemkwekerijproducten),<br />
the Dutch association for the<br />
wholesale trade in flowers and<br />
plants, since 2002.<br />
14 www.FloraCulture.eu | <strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong>
Exploring the urban jungle<br />
In the next 15 years, 60% of the world's<br />
population will be living in cities with<br />
over one million inhabitants. This trend<br />
will severely impact the scope and<br />
manner in which plants are used – and<br />
hence have a profound impact on our<br />
industry as a whole.<br />
The world's population is currently at just<br />
over 7 billion; the projections for the next 40<br />
to 50 years predict that we will be reaching<br />
between 9 and 10 billion before population<br />
growth levels off, or indeed slowly start to<br />
decline. More and more people are already<br />
fleeing the countryside and moving to cities<br />
and urban areas.<br />
Scarce outdoor green areas<br />
In urban areas, space for outdoor green<br />
areas is already scarce – and getting scarcer<br />
still. Full-scale city gardens and parks are<br />
becoming rare – and yet urban developers are<br />
realising that plants and gardens play a vital<br />
role in filtering and sequestering pollutants,<br />
improving urban microclimates, creating and<br />
securing environmental niches for plant and<br />
animal species in urban areas. New ways of<br />
using plants are being implemented: vertical<br />
gardens are all the rage, guerilla gardening<br />
has become a global trend, and breeders are<br />
churning out petite versions of well-known<br />
crops that take up less space and are better<br />
adapted to urban environments.<br />
Urban gardening<br />
Furthermore, all the denizens of urban areas<br />
need sustenance. Instead of trucking fresh<br />
by Garry Grueber<br />
In urban areas, space for outdoor green areas is already scarce – and getting scarcer still<br />
(Photo credits: Garry Grueber).<br />
produce halfway across continents<br />
to feed the hungry hordes of citydwellers,<br />
we are already seeing a<br />
strong trend towards utilitarian<br />
urban gardening, and even urban<br />
agriculture. New cultivation and<br />
lighting methods are transforming<br />
high-rise rooftops, abandoned<br />
factory buildings and derelict<br />
subterranean tunnels into verdant<br />
production greenhouses that provide<br />
truly fresh produce to the urbanites<br />
without the cost and environmental<br />
impact of long-distance transport.<br />
Quality of living<br />
Lastly, we should not forget the vast<br />
impact that plants and green spaces<br />
have on the overall quality of living<br />
in urban environments. Mankind<br />
is, and always will remain, a product<br />
of nature, genetically hardwired<br />
to appreciate and yearn being<br />
surrounded by living things. For our<br />
industry, increasing urbanisation<br />
is not only a challenge, but also a<br />
huge opportunity. Looking forward,<br />
our industry will need to develop<br />
and offer water-wise plant varieties<br />
that will thrive well in the often<br />
hostile urban environment, require<br />
little space, provide year-round<br />
interest and uses. Our combined<br />
knowledge and expertise in growing<br />
and breeding plants will be more<br />
important than ever in tomorrow's<br />
increasingly urbanised world. |||<br />
More and more<br />
people are<br />
already fleeing<br />
the countryside<br />
and moving to<br />
cities and urban<br />
areas (Photo<br />
credits: Garry<br />
Grueber).<br />
About the author<br />
Garry Grueber has been involved in product development<br />
for over three decades. He has worked closely with many<br />
breeders from around the world, and has been involved<br />
in the successful introduction of many new product lines,<br />
varieties and marketing concepts over the years. He is<br />
now a managing partner in Cultivaris North America LLC<br />
and Global Breadfruit.<br />
<strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong> | www.FloraCulture.eu 15
Voices of the industry<br />
<strong>CIOPORA</strong> unites<br />
breeders of many<br />
different plant<br />
varieties, both in<br />
ornamentals and<br />
fruits. In order to<br />
achieve a better<br />
IP protection<br />
for breeders’<br />
innovations, it is<br />
necessary to listen<br />
out to all of the<br />
voices among their<br />
ranks. The <strong>CIOPORA</strong><br />
Crop Sections<br />
are the groups of<br />
like-minded plant<br />
breeders who, in<br />
spite of competition,<br />
come together to<br />
discuss the most<br />
persisting problems<br />
in their crops,<br />
including cut roses,<br />
Gypsophila, pot<br />
plants, carnation and<br />
fruits. It is hardly<br />
surprising that the<br />
Crop Sections form<br />
the backbone of<br />
<strong>CIOPORA</strong>.<br />
Crop Sections as backbone<br />
of the association<br />
<strong>CIOPORA</strong> Crop Section Gypsophila<br />
is going strong<br />
Established at the association’s<br />
AGM 2013 in Angers, France, the<br />
Crop Section Gypsophila is the<br />
newest addition to the Ciopora<br />
family.<br />
Gypsophila paniculata is a species<br />
of flowering plant of the Caryophyllaceae<br />
family, native to central and<br />
Eastern Europe. It is a herbaceous<br />
perennial with lots of branching<br />
stems covered in clouds of tiny<br />
white flowers in summer. Due to its<br />
gentle and airy look the crop is commonly<br />
referred to as ‘baby's breath’.<br />
Thanks to the outstanding<br />
performance of modern varieties,<br />
Gypsophila is an important crop<br />
for growers, wholesalers and florists<br />
alike. It is impossible to imagine<br />
contemporary floral designs and<br />
bouquets without this marvellous<br />
flower.<br />
Key issues<br />
The Ciopora Crop Section<br />
Gypsophila represents six companies<br />
from the Netherlands, Israel,<br />
by Ingrid Slangen<br />
Gypsophila flowers (Photo credits: Selecta Klemm).<br />
Japan, Spain/Germany and the<br />
USA/Colombia that are active in<br />
breeding and worldwide distribution<br />
of Gypsophila varieties. They<br />
decided to join forces to discuss<br />
and handle the topics of common<br />
interest. Since the foundation of<br />
the group a year ago, four meetings<br />
have been held in France, Colombia<br />
and in the Netherlands, which<br />
shows the need within the industry<br />
to exchange ideas and to discuss<br />
key issues, such as the tremendous<br />
increase of PBR fees in Ecuador or<br />
the illegal propagation of Gypsophila<br />
varieties in different countries.<br />
Genetic database<br />
As its first major project, the group<br />
decided to set up a genetic database<br />
for Gypsophila varieties. The core<br />
purpose of such a database is to<br />
have a tool to identify varieties and<br />
thus to stop illegal production and<br />
propagation of varieties owned or<br />
sold by the group members. Five<br />
of the six group members will<br />
participate in the project and are<br />
ready to hand in their varieties to be<br />
analysed. After a detailed discussion<br />
within the group, members chose<br />
the Dutch institute Naktuinbouw<br />
to carry out the genetic analysis.<br />
16 www.FloraCulture.eu | <strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong>
Crop Section Fruit offers members<br />
many benefits<br />
The Crop Section Fruit has grown<br />
substantially over the past years;<br />
it now covers many countries<br />
worldwide, which makes the<br />
Section a valuable source of<br />
information for its members.<br />
During the last meeting of the<br />
Section in March <strong>2014</strong> in The<br />
Hague, some final questions<br />
were discussed together with a<br />
representative of Naktuinbouw,<br />
and the project can soon be<br />
given the go-ahead. The set-up<br />
of the DNA database is definitely<br />
a significant milestone<br />
for the breeders and distributors<br />
of Gypsophila varieties,<br />
but there will certainly follow<br />
further valuable discussions<br />
and important projects useful<br />
for the group and the whole<br />
flower industry.<br />
For more information on<br />
the work of the Crop Section<br />
Gypsophila please contact<br />
the <strong>CIOPORA</strong> Office. |||<br />
About the author<br />
Ingrid Slangen has been<br />
working for Selecta Klemm<br />
since 2005. As the head of the<br />
department “IP and Marketing”<br />
she is responsible for all<br />
questions around Intellectual<br />
Property and together with<br />
her team she takes care of<br />
the worldwide protection and<br />
licensing of a wide range of<br />
Selecta’s bed and balcony<br />
varieties, poinsettias and<br />
cut flowers as well as of<br />
trademarks and patents.<br />
Ingrid is the Chairwoman and<br />
the founder of the <strong>CIOPORA</strong><br />
Crop Section Gypsophila.<br />
A major topic within the <strong>CIOPORA</strong><br />
Crop Section Fruit is the enforcement<br />
of Plant Variety Rights<br />
(PVRs). Depending on a crop, this<br />
can take on many different forms.<br />
Grape breeders, for example, face a<br />
lot of problems due to illegal propagation,<br />
so they are very proactive in<br />
tracking down the illegal plants and<br />
grapes in a multitude of countries.<br />
Not only have they shared their<br />
experiences with different enforcement<br />
procedures within the Fruit<br />
Section, they are now also taking<br />
it a step further by developing a<br />
platform for information sharing in<br />
order to facilitate the identification<br />
of infringements on each other’s<br />
varieties.<br />
Variety identification<br />
A quick and sufficient variety identification<br />
is a major challenge for all<br />
fruit crops, since comparative trials<br />
may take many years. So there is a<br />
keen interest amongst the members<br />
to develop protocols that allow<br />
identification by DNA analysis,<br />
not only in view of enforcement of<br />
Plant Variety Rights, but also to<br />
by An Van den Putte<br />
Photo credits: Better3Fruit.<br />
identify essentially derived varieties,<br />
i.e. mutants.<br />
By developing a joint protocol that<br />
is agreed upon by many breeders,<br />
we hope to increase the credibility<br />
of these techniques. The berry<br />
bree ders, for example, are currently<br />
running a pilot project, which will<br />
be extended to other crops in due<br />
course. A valuable addition in this<br />
respect is the experience of the ornamental<br />
breeders within <strong>CIOPORA</strong>,<br />
as well as the work done by the<br />
<strong>CIOPORA</strong> Working Group<br />
Molecular Techniques.<br />
Knowledge sharing<br />
Apart from these concrete joint<br />
projects, the Crop Section Fruit also<br />
provides its members with more<br />
informal benefits. The members,<br />
even though they are competitors,<br />
are eager to share their knowledge<br />
and experience in obtaining and<br />
maintaining IP rights. This can<br />
be about the practicalities of DUS<br />
trials, quarantine restrictions, issues<br />
with novelty and denominations,<br />
finding a local contact or attorney,<br />
trademarks and the do’s and don’ts<br />
of licensing.<br />
UPOV<br />
<strong>CIOPORA</strong> not only lobbies for<br />
improved and stronger IP rights,<br />
but also focuses on improving the<br />
implementation of the current PVR<br />
regulations.<br />
Thanks to <strong>CIOPORA</strong>’s observer<br />
status in UPOV, a representative of<br />
the <strong>CIOPORA</strong> Crop Section Fruit<br />
can attend the UPOV and CPVO<br />
technical meetings concerning fruit.<br />
This means that the voice of the<br />
breeders is being heard on concrete<br />
issues, such as cost of the DUS<br />
examination, sanitary requirements<br />
for the samples supplied, revision of<br />
technical protocols and guidelines,<br />
and many others topics.<br />
Since the members demonstrated a<br />
growing interest in increasing the<br />
activities of the Crop Section Fruit,<br />
the Section will now, in addition<br />
to the regular meeting during<br />
the <strong>CIOPORA</strong> AGM Week, also<br />
convene during the Fruit Logistica<br />
trade show in Berlin. Companies<br />
who are considering membership<br />
in <strong>CIOPORA</strong> are welcome to attend<br />
this meeting (feel free to contact the<br />
<strong>CIOPORA</strong> Office for details). |||<br />
About the author<br />
An Van den Putte started working for<br />
Better3fruit in 2003 as a researcher;<br />
soon thereafter she took up the<br />
position of Intellectual Property<br />
manager. An handles the worldwide<br />
protection of Better3fruit’s apple and<br />
pear varieties through Plant Variety<br />
Rights, Patents and Trademarks. Her<br />
responsibilities also include enabling<br />
worldwide testing and supporting<br />
Better3fruit’s licensees. She is chair<br />
of the <strong>CIOPORA</strong> Crop Section Fruit.<br />
>>><br />
<strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong> | www.FloraCulture.eu 17
Voices of the industry<br />
Tackling the thorny issues<br />
The International Rose Breeders<br />
Association (IRBA) was founded<br />
in October 1989. It will celebrate<br />
its silver jubilee at the <strong>2014</strong> IFTF<br />
show, which will be held from<br />
November 5 to 7 in Vijfhuizen,<br />
the Netherlands.<br />
IRBA currently has 15 active<br />
member breeders of cut-roses. As<br />
the association had been working<br />
closely with <strong>CIOPORA</strong> regarding<br />
many PBR cut rose issues, it was<br />
decided at the IRBA meeting in<br />
Nice 2005, to join Ciopora as a crop<br />
section which today is known as the<br />
<strong>CIOPORA</strong> Crop Section Cut Rose.<br />
This ‘joint venture’ has strengthened<br />
the ties between both organisations,<br />
resulting in a more productive collaboration<br />
on important PBR issues.<br />
Ecuador<br />
There are different key PBR issues<br />
affecting the rose industry. Ecuador,<br />
for example, has become<br />
a problem for breeders; especially<br />
regarding their annual maintenance<br />
fees for PBR titles.<br />
The country has been imposing the<br />
highest fees for the registration and<br />
maintenance of PBR of any of the<br />
main rose exporting countries. By<br />
teaming up with <strong>CIOPORA</strong>, IRBA<br />
has pointed out the negative impact<br />
on breeders and growers alike.<br />
IRBA and <strong>CIOPORA</strong> have continuously<br />
emphasised that the discounts<br />
of the PBR fees offered by the Ecuadorian<br />
government to the breeders<br />
by Omer Schneider<br />
with breeding programs in Ecuador<br />
do not cure the violation of Article<br />
3.1 of the TRIPS Agreement. IRBA’s<br />
concerns have also been presented to<br />
the EU. Following the IRBA meeting<br />
in The Hague, the Netherlands,<br />
the Ecuadorian government published<br />
a discount structure for fees<br />
that is outlined in this same issue<br />
by Ciopora and IRBA member,<br />
Mr. Dean Rule. Page 44.<br />
Although Ecuador is a very important<br />
market for many cut rose<br />
breeders, there is a general consensus<br />
that within Ecuador most breeders<br />
might restrict availability of certain<br />
niche market varieties that have<br />
been an important part of the mix<br />
of Ecuadorian growers. At the same<br />
time, many breeders are committed<br />
to continue working with the<br />
excellent and honest growers in the<br />
country who have been actively<br />
promoting new varieties, while at<br />
the same time working to stop shipments<br />
from illegal farms at entry<br />
points in export markets.<br />
Russia<br />
Russia is also a quite problematic<br />
market for cut roses. Even though<br />
the rose is the No. 1 flower in Russia,<br />
only 15% of the cut roses on the<br />
market are produced locally. There<br />
are approximately 200 hectares of<br />
cut rose production – most, if not<br />
all, illegal. The current expansion<br />
is estimated at 63 hectares, 30 of<br />
which might be illegal.<br />
In order to get some protection,<br />
breeders must register their varieties<br />
with Gossortkom, the National<br />
Plant Variety Protection Office,<br />
with the objective of striving for<br />
PBR and additionally obtaining<br />
trademark protection. Russia has<br />
acceded to the 1991 Act of the<br />
UPOV Convention, but still needs<br />
to establish mechanisms for market<br />
monitoring and control of alleged<br />
illegal growers. IRBA and <strong>CIOPORA</strong><br />
have a joint venture in place and<br />
are working with a law firm in<br />
Russia to address key issues.<br />
The pertinent question is how<br />
to implement an improved PBR<br />
protection system.<br />
Rosa ‘Paloma’<br />
by Rosen Tantau<br />
(Photo credits:<br />
Rosen Tantau).<br />
Kenya<br />
Recently, the Kenya Flower Council (KFC)<br />
has introduced a Code of Conduct regarding<br />
breeders. IRBA has been working with KFC to<br />
ensure that the code is not restrictive for the cut<br />
rose breeders. Since breeders can’t always be present<br />
at the meetings, the association assigned two<br />
breeder associates in Kenya to represent IRBA<br />
during important KFC meetings and to report<br />
back to IRBA. No decisions were to be made<br />
without IRBA’s approval. By the end of March<br />
<strong>2014</strong> the code KS 1758-2004 was finalised and<br />
approved by IRBA, and a copy was submitted to<br />
the IRBA members and <strong>CIOPORA</strong>.<br />
Mexico<br />
IRBA member and President of <strong>CIOPORA</strong>,<br />
Andrea Mansuino, had recently visited Mexico.<br />
He reported on cut rose production and advised<br />
that most of the production there was illegal.<br />
Though there is a PBR law in place, Mexico has<br />
not been successful with its implementation.<br />
Most of the production is for local consumption.<br />
However, there appears to be some export activity<br />
developing.<br />
It was agreed that <strong>CIOPORA</strong> and IRBA should<br />
develop a joint action plan to address the issues in<br />
Mexico to better protect PBR on cut rose varieties.<br />
Other countries that are continuously monitored<br />
regarding PBR development are Brazil, China,<br />
Ethiopia, and a number of others with emerging<br />
floriculture activities. |||<br />
About the author<br />
For the past 18 years, Mr. Omer Schneider has been chairing the<br />
International Rose Breeders Association (IRBA), which has become the<br />
<strong>CIOPORA</strong> Crop Section Cut Rose IRBA. He is past President of <strong>CIOPORA</strong><br />
(1996-1999) and had been on the Board of the association for 21 years. He is<br />
also past President of AARA (All American Rose Selection). Mr. Schneider<br />
has acquired his extensive expertise in the area of rose breeding and<br />
marketing at Jackson & Perkins Co/Bear Creek Corporation, where he<br />
worked for 36 years, including a decade in role of Sr. Vice President.<br />
<strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong> | www.FloraCulture.eu 19
Profile<br />
Ciopora <strong>Chronicle</strong><br />
sat down with Ms.<br />
Maxine J. Horn, the<br />
founder and CEO of<br />
Creative Barcode,<br />
to talk about IP<br />
Protection in the<br />
digital age.<br />
IP Solutions for the<br />
Future: Creative Barcode<br />
by Anna Kaehne<br />
Imagine how different our world<br />
would be if the ancient scholars<br />
worked and created under the<br />
circumstances of the digital age.<br />
This would be a world, where<br />
Pythagoras blogs on a regular basis,<br />
Aristotle hopes for more clicks for<br />
his explanatory metaphysics videos<br />
on Youchimney.com, and Diogenes<br />
of Sinope seeks to organise flash<br />
mobs via posts on Buzz-from-thebarrel.com.<br />
Their work and ideas<br />
are re-posted and re-tweeted, their<br />
names and their authorship become<br />
lost and forgotten in the jungle of<br />
the digital space. Would the accessibility<br />
and the fast-paced character<br />
of the knowledge created and<br />
shared by these scholars change our<br />
perception of their value? Would<br />
the numerous re-posts without<br />
attribution lead to devaluation of<br />
the original and the oblivion of<br />
their names? And finally: could the<br />
negligence towards the authorship<br />
fundamentally change our cultural<br />
history?<br />
In search for answers the Ciopora<br />
<strong>Chronicle</strong> talked to Ms. Maxine J.<br />
Horn – the expert in questions of<br />
Intellectual Property Protection,<br />
the founder of British Design<br />
Innovation and Innovation Bank,<br />
and the visionary behind Creative<br />
Barcode – the main subject of our<br />
talk.<br />
Maxine, thank you very much<br />
for talking to <strong>CIOPORA</strong>.<br />
Could you explain the role of<br />
authorship in our culture and<br />
how the omnipresence of the<br />
internet with its informational<br />
overload influences the<br />
public perception of this<br />
concept?<br />
“I believe the traditional role of<br />
authorship and man-made creation<br />
has not changed a great deal in<br />
centuries irrespective of the greater<br />
access to knowledge and new<br />
technologies that today influence<br />
Maxine J. Horn, the founder and CEO of Creative Barcode.<br />
and expand a creator’s opportunity.<br />
As such, the internet plays a<br />
positive role in enabling access to<br />
knowledge and creative content for<br />
everyone.<br />
However, in a rush to build an omnipotent<br />
presence, the lead Internet<br />
pioneers, such as the global search<br />
engines, have created their commercial<br />
model based on presenting<br />
everyone else’s digitised work as free<br />
to access, free to view and free to<br />
download and use without permission<br />
or remuneration. I can see how<br />
that works for them!<br />
In general, the public would not<br />
question the concept of free access<br />
to information & digitised product<br />
such as music and film, for example.<br />
And unless they are advised<br />
otherwise, or technology prevents<br />
them from deliberate or inadvertent<br />
illegal download, they will assume<br />
it is fine to carry on, as no one<br />
can track the crime or due to the<br />
general lack of understanding that<br />
it is a crime in the first place.”<br />
In your recent article on<br />
CreativeBarcode.com you<br />
compare the internet to the<br />
Wild West. Could you explain<br />
the nature of this metaphor<br />
in relation to Intellectual<br />
Property?<br />
“At a recent business event, when<br />
the young marketing manager of an<br />
Arts Centre asked what I did, I said<br />
I had developed a new intellectual<br />
property system for copyright in the<br />
digital age. The alarming response<br />
was: “I thought the internet had got<br />
rid of copyright!”<br />
Whilst there remain laws in place<br />
to deal with theft and counterfeiting,<br />
when it comes to the Internet<br />
illegal downloads of commercial<br />
photography, illustration, music,<br />
film, design, there are no widely<br />
cited laws that the average consumer<br />
20 www.FloraCulture.eu | <strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong>
instantly recognises, understands<br />
and abides by.<br />
Therefore, the consumer response<br />
is lawlessness. It’s almost as though<br />
the shop-keeper has left the store<br />
wide open, with no barcodes or<br />
prices on the products and no<br />
cameras or signage advising that<br />
products may not be taken without<br />
permission or payment.<br />
Even if a store was left unattended,<br />
some people would walk on by as<br />
they would understand that taking<br />
products without payment was<br />
‘shop-lifting’ and that it was illegal.<br />
But when it comes to the download<br />
of digital product from the Internet<br />
the general public perception is that<br />
digital equals fast and free.”<br />
In 2010, you launched<br />
Creative Barcode (CB).<br />
Could you tell us about<br />
the core idea behind this<br />
project and its purpose?<br />
“Initially, the focus and purpose<br />
was to assist designers and brand<br />
owners to reduce their risks and<br />
vulnerabilities when seeking to<br />
collaborate whether through open<br />
innovation challenges, business<br />
pitching, co-creation or any other<br />
concept disclosure activity.<br />
In 2012, we expanded the barcode<br />
system to include Rights Reserved<br />
and Permitted Use tags for use by<br />
creators to embed in completed<br />
works displayed online and to principally<br />
communicate to an Internet<br />
user the details of the owner and<br />
their usage terms.<br />
More recently (<strong>2014</strong>), we have<br />
over-hauled Creative Barcode to<br />
make the tags discreet and with an<br />
aesthetically improved design and<br />
easier user interfaces.”<br />
Creative Barcode Logo.<br />
By scanning the QR code or following the link on the IP tag the recipient can immediately access the information about the creator.<br />
The update of this information can be undertaken by every creator anytime in his/her Creative Barcode online account<br />
(Photo credits: Creative Barcode <strong>2014</strong>).<br />
Could you define the major<br />
problems you set out to solve<br />
by means of CB?<br />
“Having founded and run British<br />
Design Innovation for 17 years<br />
(1993 to 2010) I was well aware<br />
of the difficulties encountered by<br />
designers and innovators when<br />
seeking to obtain fair and fast Non-<br />
Disclosure Agreements (NDA)<br />
from corporations.<br />
Within the corporations those<br />
responsible for engaging external<br />
parties in their product, service and<br />
brand development work or open<br />
innovation activities generally sat in<br />
Marketing, R & D or Innovation<br />
departments at middle-management<br />
level. Design and Innovation<br />
is time sensitive and thereby the<br />
process of engaging two sets of<br />
lawyers and a detailed NDA just<br />
to open up a safe conversation was<br />
akin to taking a sledge hammer to<br />
crack a nut.<br />
Many creators who submitted ideas<br />
and concepts to brand owners in<br />
competition with competitors including<br />
the brand’s in-house team,<br />
often found that, whilst told they<br />
had not been successful in winning<br />
a contract, saw a very similar<br />
concept come to market within<br />
12 months launched by the brand<br />
they had pitched to. Naturally<br />
this caused suspicion, angst and<br />
distrust. And those that challenged<br />
the brand owner often discovered<br />
that the IP legal system could do<br />
very little for them as ideas were<br />
not protected and a lack of any<br />
form of agreement in place by and<br />
large would result in a drawn-out<br />
David versus Goliath legal battle<br />
and a substantial legal bill with no<br />
guaranteed outcome in their favour.<br />
We developed the original Creative<br />
Barcode system to overcome these<br />
problems.”<br />
What makes CB unique<br />
among the other systems<br />
of IP protection?<br />
“We have removed the complexity<br />
and reduced the vulnerability when<br />
engaging with third parties and<br />
enabled safe-conversations to take<br />
place at early concept stage. We put<br />
ethics and trust at the heart of the<br />
solution.<br />
When it comes to completed<br />
works displayed online, IP Tags are<br />
visible and the technology creates<br />
a unique URL embedded in the<br />
tag that leads through to the Meta<br />
Data such as creation date, creator’s<br />
>>><br />
<strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong> | www.FloraCulture.eu 21
Profile<br />
contact details, usage terms, source<br />
credit, basic licensing, etc. – all<br />
written in simple laymen’s terms.<br />
IP Tags give the internet user<br />
instant access to clear and useful<br />
information. In that regard it is<br />
easier to understand IP Rights and<br />
more useful than “©copyright. All<br />
rights reserved”.<br />
Uniquely, if an IP Tag has been<br />
applied to 1000 files or applied to<br />
just one photograph distributed<br />
across 100’s of publications and<br />
portals, should the IP Tagged item<br />
or concept be sold outright or the<br />
creator’s address details change, the<br />
Creator simply updates the IP Tag<br />
Meta Data once and it simultaneously<br />
and instantly updates every<br />
single file or image the IP Tag is<br />
applied to worldwide.<br />
NDAs aside, it is also the only early<br />
stage IP safe-disclosure system in<br />
place that forms a legally binding<br />
Trust Agreement.”<br />
Who can make use of CB and<br />
what can be protected by it?<br />
“Anyone with concepts or confidential<br />
information to disclose or<br />
completed works displayed online<br />
and in social media. Whether an<br />
individual, entrepreneur, creative<br />
firm, micro start-up, SME, corporation,<br />
institution or student –<br />
Creative Barcode is their minimum<br />
positive IP system or the first step<br />
IP registration to support a business<br />
in safe-disclosure of information<br />
before there are ready and eligible to<br />
apply for a patent, register a design<br />
or apply for a trademark.<br />
The majority of creators and all<br />
types of business do not realise that,<br />
with the exception of the USA and<br />
China, there is no formal Copyright<br />
registration at national level.<br />
Yet unregistered Copyright, whilst<br />
free and automatic, is harder to<br />
enforce, especially in the circumstances<br />
of the digital age<br />
Therefore, although UK-based,<br />
international Creative Barcode has<br />
stepped into that gap. The Creative<br />
Barcode system is available to all<br />
creators and businesses worldwide<br />
and is endorsed by the World<br />
Intellectual Property Organisation<br />
(WIPO).”<br />
What forms the legal basis of<br />
protection under the CB and<br />
what types of IP tags does CB<br />
offer?<br />
“The CB system offers four types<br />
of IP Tag with differing Meta Data<br />
fields relevant to projects in development<br />
(Blue), completed work<br />
with rights reserved such as a final<br />
design image or photograph (red) ,<br />
completed work with permitted use<br />
such as articles or coding (green)<br />
and a company IP Tag that simply<br />
denotes your commitment to ethical<br />
IP practice (black). Each tag is<br />
created in landscape and portrait<br />
versions and in print, digital and<br />
thumbnail formats to suit a user’s<br />
implementation requirements.<br />
The legal basis of the safe-disclosure<br />
system is through the file transfer<br />
service and acceptance of the Trust<br />
Charter Agreement, which forms<br />
the terms of engagement between<br />
those disclosing and those receiving<br />
concepts and business propositions.<br />
The send, receive and download<br />
transactions are recorded by the<br />
data base where users have access<br />
directly to their own data logs.<br />
If ever needed, these can be used<br />
as a support to an evidence base.<br />
In the instance of completed work<br />
displayed online with an IP Tag, it<br />
is the creators/owners who state in<br />
the Meta Data, whether the item<br />
is free to use with a source credit<br />
or available for license. The creator<br />
is directly contactable to discuss<br />
and agree terms along with, as<br />
applicable, their nominated agent<br />
or lawyer.<br />
Creative Barcode does not get<br />
involved in the deal making or the<br />
terms – we just make it easier and<br />
efficient for parties to agree terms<br />
faster with the added comfort that<br />
CB is an open and ethical third<br />
party witness who the work is<br />
registered with.”<br />
The IP Tags are<br />
available in 6<br />
different sizes in<br />
landscape and<br />
portrait formats<br />
for use in print;<br />
on digital and in<br />
thumbnail images<br />
(Photo credits:<br />
Creative Barcode<br />
<strong>2014</strong>).<br />
Imagine I am a freelance<br />
designer, who often provides<br />
pitches to contractors, and I<br />
am seeking protection for my<br />
ideas and creations. What is<br />
the procedure for obtaining<br />
CB and what comprises<br />
the technical side of its<br />
application to my creations?<br />
“It’s really easy. The designer<br />
would register for CB-Innovation<br />
membership. They would create<br />
their IP Tag simply by selecting a<br />
Blue project tag (see example from<br />
CB member Mellor&Scott). The<br />
designer completes the Meta Data<br />
fields such as title of the project and<br />
Creators names and source credits.<br />
Other fields are automatically<br />
populated such as the member’s<br />
address details and some are<br />
assigned automatically by the<br />
CB database such as creation date,<br />
ID number and unique URL.<br />
The user has very little to do as<br />
the system has been engineered to<br />
do all of the work for them and to<br />
create and output the IP Tag as a<br />
graphic. The IP Tag can then be<br />
inserted into an image using the<br />
CB image editor or the designer can<br />
opt to use their own image editing<br />
software. The IP Tag is copied and<br />
pasted into every document or<br />
PDF and other correspondence the<br />
designer is disclosing to the third<br />
party client.<br />
Files are sent through the file transfer<br />
service to gain acceptance of the<br />
Trust Charter before file download<br />
commences.”<br />
From the CB website, the<br />
users learn that the CB trust<br />
charter has never been<br />
breached. Do you have an<br />
explanation for this success<br />
story? What does CB do<br />
differently from the other<br />
systems of protection?<br />
“It’s all in the simplicity. It’s easier<br />
to uphold the Trust Charter than<br />
it is to breach it. And it’s balanced<br />
where both parties give each other<br />
one legal warranty.<br />
“If the creators’ concept was used<br />
without written permission there<br />
is no loop hole. They either had<br />
permission or they didn’t.”<br />
22 www.FloraCulture.eu | <strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong>
Now, let’s say, the CB trust<br />
charter has been breached.<br />
What are the enforcement<br />
options?<br />
“The first option is for the Creator<br />
to confirm their IP membership of<br />
Creative Barcode and remind the<br />
party in breach of the terms of the<br />
Trust Charter supported by WIPO.<br />
In the few instances where trouble<br />
has flared up and a breach appears<br />
likely to occur, simply drawing CB,<br />
the Trust Charter and WIPO to<br />
their attention has shut the trouble<br />
down and averted a breach.<br />
However, if the party continued<br />
down the wrong path the next<br />
course of action would be to contact<br />
the WIPO mediation department<br />
who would send an intervention<br />
letter free of charge.<br />
If that does not resolve the matter,<br />
the parties are obligated to enter<br />
into a WIPO mediation (costs are a<br />
fixed fee, discounted by 50% to CB<br />
members and to a ceiling cost of<br />
£4,000 shared between the parties)<br />
Enforcement issues and costs have<br />
always been a problem for individuals<br />
and small firms – David and<br />
Goliath syndrome – but Creative<br />
Barcode substantially levels the<br />
playing field. No longer is the<br />
smaller player on their own, instead<br />
they have Creative Barcode and<br />
WIPO at their shoulder.”<br />
Maxine, thank you for telling<br />
<strong>CIOPORA</strong> about Creative<br />
Barcode. Our last question is<br />
of a more general character.<br />
What is, from your point of<br />
view, the major challenge<br />
for IP of our times, and what<br />
can be done to raise the<br />
awareness of the general<br />
public towards intellectual<br />
property and its value for the<br />
society?<br />
“I think, in part you highlighted<br />
this in your introduction. If the<br />
legacy of the digital age is ‘Creator<br />
unknown’ (Orphan Works) and<br />
endless inaccurate attributions<br />
where a source credit simply states<br />
the online publication/portal where<br />
the user discovered the work or the<br />
search engine that returned the<br />
work e.g. Google Images or simply<br />
‘the internet’ then not only will a<br />
Creators livelihood and creative and<br />
innovation journey be eroded, but<br />
over time so will the creative and<br />
cultural history of nations.<br />
Tim Berners-Lee created the www<br />
and his non-commercial offering of<br />
it to the World was given to enable<br />
access to and sharing of knowledge<br />
and to build upon the work of others<br />
to advance innovation. It wasn’t<br />
given to deny Creators a livelihood,<br />
misattribute their work or erode<br />
society’s knowledge of the Original<br />
Source.<br />
The 12 th century theologian and<br />
author John of Salisbury is credited<br />
with the first use of the term ‘standing<br />
on the shoulders of giants’ in his<br />
essay on logic titled Metalogicon.<br />
But best-known for the use of the<br />
phrase is perhaps Sir Isaac Newton<br />
who in his letter to Robert Hooke<br />
in 1676 stated:<br />
"What Descartes did was a good<br />
step. You have added much several<br />
ways, and especially in taking the<br />
colours of thin plates into philosophical<br />
consideration. If I have<br />
seen a little further, it is by standing<br />
on the shoulders of giants."<br />
In modern day terms, the phase is<br />
often used in innovation to mean<br />
using the achievements and understanding<br />
gained by major thinkers<br />
who have gone before and building<br />
upon their work in order to make<br />
intellectual, technological and innovation<br />
progress.<br />
So ironically, one of the biggest<br />
challenges for IP in our times is<br />
to stop the erosion of the original<br />
source and to do that requires<br />
collective action and collective<br />
responsibility.<br />
IP Cartoons a<br />
collaborative work<br />
by Maxine Horn<br />
and Cartoonist<br />
Roger Penwill.<br />
First, Creators must take the time<br />
and the responsibility for marking<br />
their work before publishing it<br />
online.<br />
Publishers should insist that works<br />
submitted contain a unique identifier<br />
such as a Creative Barcode IP<br />
Tag, a Creative Commons license<br />
or the Creators own marque, name<br />
and usage terms.<br />
Finally, a positive communication<br />
programme could be supported by<br />
national governments seeking to<br />
educate consumers in consumer<br />
friendly language and preserve<br />
original source and therefore<br />
creative and cultural history.<br />
I think it would be counter-productive<br />
for Governments and Internet<br />
Service Providers to create just a<br />
retribution process rather than<br />
create a reward based system for<br />
doing the right thing through<br />
loyalty-type schemes.<br />
Creative Barcode has created a<br />
system and process to assist in<br />
preserving Original Source but<br />
now the horse needs to drink.” |||<br />
About the author<br />
Anna Kaehne is a Manager Public Relations & Communications<br />
at <strong>CIOPORA</strong>. She is responsible for association’s internal and external<br />
communications including the relations with press, production of media<br />
and marketing materials offline as well as online. She is the person behind<br />
the <strong>CIOPORA</strong> <strong>Chronicle</strong>, association’s newsletter, press releases, website<br />
and other communication projects.<br />
Anna holds a Magister Degree in<br />
English and Slavic Studies from<br />
the University of Magdeburg,<br />
Germany. In her homeland<br />
– Ukraine – she studied International<br />
Law at the National Law<br />
Academy of Ukraine in Kharkov.<br />
<strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong> | www.FloraCulture.eu 23
Intellectual Property<br />
In today’s global<br />
market, protecting<br />
the trademarks of<br />
ornamental and fruit<br />
varieties online has<br />
become increasingly<br />
important.<br />
Combatting online<br />
trademark infringement in<br />
ornamental and fruit varieties<br />
Breeders face what may appear to be a daunting task of protecting their trademarks online (Photo credits: Morguefile.de).<br />
by Lucas S. Michels<br />
The internet has arguably<br />
become the main channel<br />
for consumer advertising<br />
and retail sales, and knowing how<br />
to protect your trademarks online,<br />
whether through hosted portals<br />
such as Google or Amazon, or<br />
independently through user-owned<br />
sites, has become essential to<br />
managing global brands.<br />
Many challenges<br />
Yet, online trademark protection<br />
poses many challenges as many<br />
major online ad and retail portals<br />
have their own policing and<br />
enforcement limitations, often<br />
requiring brand owners to conduct<br />
their own trademark enforcement<br />
activities, know the particular<br />
intricacies of each portal’s enforcement<br />
system, and seek litigation in<br />
certain instances. The recent U.K.<br />
trademark case Cosmetic Warriors<br />
Ltd. v Amazon.co.uk Ltd. [<strong>2014</strong>]<br />
EWHC 181 (Ch) highlights this<br />
point as although the cosmetic producer<br />
Lush was able to successfully<br />
prevent online retailer Amazon<br />
from buying Google AdWords of<br />
Lush’s trademark-protected brand<br />
name, it required Lush to seek<br />
enforcement of their brand through<br />
multiple measures in order to<br />
do so.<br />
Names being misused<br />
Unfortunately, ornamental and<br />
fruit variety breeders too are increasingly<br />
required to find efficient<br />
and effective methods to prevent<br />
their trademarks from being<br />
misused or misappropriated online.<br />
In our practice, we see such names<br />
being misused online much like<br />
any other product names, e.g., with<br />
fruit-flavoured tobacco and alcohol<br />
products using protected fruit<br />
trademarks without authorisation.<br />
Such misuse not only causes public<br />
confusion as to a breeder’s relationship<br />
to the infringing products, but<br />
as shown, can create an unintended<br />
relationship between breeder’s<br />
registered trademarks and products<br />
or services that have unfavourable<br />
social perceptions. Unsurprisingly,<br />
this may tarnish perceptions and<br />
goodwill consumers have towards<br />
a particular trademark-protected<br />
variety name and its owner.<br />
So what can breeders do to protect<br />
their trademarks without resorting<br />
to costly litigation? The answer is<br />
three-fold as it requires obtaining<br />
trademark protection, monitoring<br />
24 www.FloraCulture.eu | <strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong>
infringing activities, and enforcing<br />
rights against online infringers.<br />
Trademark registration<br />
In order to adequately protect the<br />
trademark of a plant variety online, a<br />
breeder needs to first obtain trademark<br />
protection. This requires registering the<br />
name as a trademark in the countries<br />
where the breeder wishes to conduct<br />
business, and ideally, where major online<br />
advertisement and retail websites<br />
will be hosted. For example, our firm<br />
recently assisted a Canada-based fruit<br />
breeder in registering a trademark for<br />
their new apple variety in the U.S.<br />
Although the U.S. registration was<br />
intended to grant the breeder U.S.<br />
protections in their mark, the U.S.<br />
registration actually gave the breeder<br />
the ability to enforce the trademark<br />
against a number of online infringers<br />
on many of the world’s major online ad<br />
and social media websites. As many of<br />
the world’s major online ad and social<br />
media platforms including Google,<br />
Bing, Yahoo!, Facebook and Twitter<br />
are U.S.-based, any breeder wishing<br />
to protect their varietal names on such<br />
U.S.-based sites may want to consider a<br />
U.S. trademark registration. However,<br />
as such U.S.-based platforms also<br />
have foreign versions of their websites,<br />
a breeder may need to still consider<br />
registering a trademark in the country<br />
where the foreign version of the U.S.-<br />
based website is focused: e.g. a Japanese<br />
trademark to enforce trademark rights<br />
on Google Japan.<br />
Monitoring<br />
Next, breeders need to monitor<br />
infringing online activities. Cost<br />
conscious breeders can self-monitor,<br />
and free reporting mechanisms such<br />
as Google Alerts give breeders readily<br />
available tools to monitor such online<br />
activities. Yet, self-monitoring can be<br />
incomprehensive and time consuming.<br />
Fortunately, companies such as<br />
Coresearch, CSC, and CompuMark,<br />
to name a few, provide helpful monitoring<br />
services.<br />
Enforcement<br />
Lastly, breeders need to enforce their<br />
rights in their marks against online<br />
infringers. Fortunately, there are<br />
several enforcement measures that do<br />
not necessarily require an attorney to<br />
perform. Yet, breeders should tread<br />
cautiously as they have an escalating<br />
effect. Advertising portals and<br />
social media sites, such as Google,<br />
Facebook and Twitter have online<br />
complaint reporting systems that<br />
allow trademark owners or their<br />
agents to submit complaints against<br />
infringing activities on their sites.<br />
These reporting systems generally<br />
have similar complaint requirements,<br />
yet they differ as to their<br />
reputation for assistance with<br />
enforcement activities. For example,<br />
Bing sometimes requires submitting<br />
multiple complaints against an<br />
infringer in order for an infringing<br />
ad to be effectively removed. Google<br />
has consistently refused to remove<br />
ads that infringe U.S. trademark<br />
registrations that were registered<br />
based on secondary meaning –<br />
descriptive trademarks that can be<br />
registred after five years of substantial<br />
and continuously exclusive use<br />
in the U.S. market. The take away<br />
from these differences is to know<br />
how each reporting system works<br />
and adhere to their requirements to<br />
ensure effective enforcement.<br />
Qualified counsel<br />
It is important to note that if an<br />
infringing use of a trademark<br />
is being conducted through an<br />
infringer’s own website, or if one of<br />
the mentioned ad or social media<br />
sites refuses to take action against<br />
a reported infringement, a breeder<br />
may need to seek qualified counsel<br />
in the jurisdiction where the<br />
infringement occurs to assist them<br />
with enforcement activities.<br />
While breeders face what may<br />
appear to be a daunting task of<br />
protecting their trademarks online,<br />
learning and applying registration,<br />
monitoring and enforcement<br />
tools is essential for breeders to<br />
protect their brands and their<br />
investment. |||<br />
About the author<br />
Lucas S. Michels is an intellectual property and<br />
corporate law attorney at Ironmark Law Group,<br />
PLLC in Seattle, Washington, U.S.A. He is also the<br />
author of the cross-border and trade-related IP<br />
blog The IP Exporter (www.theipexporter.com).<br />
<strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong> | www.FloraCulture.eu 25
Intellectual Property<br />
Over the past<br />
18 months,<br />
<strong>CIOPORA</strong> has been<br />
working on the<br />
development and<br />
adoption of its new<br />
position papers on<br />
Intellectual Property<br />
protection for<br />
plant innovations.<br />
The update of the<br />
position papers,<br />
published in 2002<br />
as ‘<strong>CIOPORA</strong><br />
Green Paper’,<br />
was a necessity<br />
arising from the<br />
rapidly changing<br />
conditions of the<br />
horticultural market,<br />
where a stronger<br />
IP protection for<br />
plant varieties<br />
is an important<br />
precondition<br />
and stimulus of<br />
the continuous<br />
innovation, stability<br />
and prosperity of the<br />
industry. Ciopora<br />
<strong>Chronicle</strong> sat down<br />
with the President<br />
of <strong>CIOPORA</strong>,<br />
Mr. Andrea<br />
Mansuino and the<br />
Secretary General<br />
of the association,<br />
Dr. Edgar Krieger to<br />
learn more about the<br />
adopted IP papers<br />
and the association’s<br />
plans for the future.<br />
by Ron van der Ploeg<br />
‘Mission FUTURE’: CIOPO<br />
During its last Annual<br />
General Meeting in The<br />
Hague in April, <strong>CIOPORA</strong><br />
has discussed and approved<br />
position papers on several<br />
aspects of IP protection<br />
for plant varieties. Can you<br />
reveal some more details?<br />
Andrea Mansuino: “In fact the<br />
discussions about <strong>CIOPORA</strong>´s IP<br />
Position have been going on for<br />
years, as IP is the main focus of<br />
our organisation. Formally, the<br />
open debate started with our large<br />
IP Conference in Venlo in 2012,<br />
where several experts discussed the<br />
weaknesses of the current systems<br />
of IP protection for plants. Additionally,<br />
more and more members<br />
expressed concerns about ineffective<br />
protection for their innovations. We<br />
took this as a signal to review the<br />
<strong>CIOPORA</strong> Green Paper, published<br />
ten years ago, which, until now,<br />
comprised the compendium of the<br />
<strong>CIOPORA</strong> Positions on IP Protection<br />
for plants.”<br />
<strong>CIOPORA</strong> is an international<br />
association with members<br />
all over the globe, which<br />
may complicate the process<br />
of discussions of such<br />
complicated matters. How did<br />
you manage to involve your<br />
members in the development<br />
of the Position Papers?<br />
Edgar Krieger: “Right after the<br />
conference in Venlo, we began to<br />
discuss the matter in the <strong>CIOPORA</strong><br />
Board and then started with the<br />
drafting of the first version of a<br />
master document. It soon turned<br />
out that the complete master document<br />
had become very comprehensive.<br />
In order to make it easier for<br />
the <strong>CIOPORA</strong> members to discuss<br />
and decide on the single topics, we<br />
divided it into eight ‘more digestible’<br />
parts by splitting the document<br />
into chapters dealing with<br />
individual subjects, namely Scope<br />
of the Right, EDV, Minimum<br />
Distance, Breeders´ Exemption, Exhaustion,<br />
Patents, Ground-breaking<br />
Innovation, and, for various minor<br />
topics, a document called ‘Additional<br />
Requests’.<br />
Andrea Mansuino: “In fact it<br />
was our Secretary General who<br />
drafted the first version of the documents,<br />
which were then intensively<br />
discussed by the Board and shared<br />
with all members by various means.<br />
Believe me, reading and understanding<br />
dozens of pages of such<br />
complex legal stuff was a hard nut<br />
to crack for the Board, and we spent<br />
numerous hours on it. As a result<br />
of the discussions, we developed<br />
the so-called Board Proposals 1.0,<br />
which were then shared with the<br />
<strong>CIOPORA</strong> members, asking them<br />
for input. At the same time we had<br />
several discussions with groups of<br />
breeders in different countries about<br />
the Board Proposals. After having<br />
received many oral and written<br />
comments from the members, the<br />
Board developed the Board Proposals<br />
2.0, which were then circulated<br />
again among all the members and<br />
served as basis for the discussions in<br />
The Hague. Those discussions were<br />
organised in a very democratic way,<br />
first in smaller specific IP Workshops,<br />
and finally in the general<br />
debate with the whole audience.”<br />
Have all papers been<br />
approved by the AGM<br />
in The Hague?<br />
Andrea Mansuino: “As mentioned<br />
by our Secretary General, we had<br />
prepared eight papers. To approve<br />
eight complex position papers was<br />
an ambitious project, and from the<br />
beginning we had the intention not<br />
to rush through the documents,<br />
but to take the necessary time to<br />
deeply involve our members and<br />
to develop sound and broadly accepted<br />
positions. We had intensive<br />
and very fruitful discussions. The<br />
members were obviously satisfied<br />
with the debate and the entire process,<br />
and at the end four position<br />
papers, namely on Minimum Distance,<br />
Scope of the Right, Breeders´<br />
Exemption and Exhaustion were<br />
Dr. Edgar Krieger<br />
Dr. Edgar Krieger is Secretary<br />
General of <strong>CIOPORA</strong>. He has<br />
extensive experience in the field<br />
of Intellectual Property Protection<br />
for plant innovation. He has been<br />
executing the position of Secretary<br />
General of <strong>CIOPORA</strong> since 2004.<br />
Previously, Dr. Krieger worked as<br />
a lawyer at an international law<br />
firm specialising in IP protection,<br />
and particularly in Plant Breeders'<br />
Rights, advising agricultural<br />
breeders in several hundred court<br />
cases up to the European Court of<br />
Justice. Dr. Krieger has completed<br />
his doctoral dissertation on the topic<br />
‘Farmers' Exemption in Germany’ at<br />
the Philipps University of Marburg.<br />
approved unanimously. We see<br />
this as a big achievement and as<br />
proof that we implemented a good<br />
procedure, particularly taking into<br />
consideration that we did not aim<br />
26 www.FloraCulture.eu | <strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong>
RA’s position papers on IP<br />
at easy compromise positions and<br />
did not ignore problematic topics,<br />
but have taken explicit decisions on<br />
them. This is of course much more<br />
difficult than to approve a “diplomatic”<br />
position which circumvents<br />
the real problems.<br />
In the end, time passed too quickly,<br />
so that we had to stop the discussions<br />
after more than eight hours.<br />
Another discussion, and possibly<br />
an approval of the remaining four<br />
position papers, shall take place<br />
at the next AGM in Tel Aviv in<br />
March 2015.”<br />
In fact, the titles of the papers<br />
indicate that you touched<br />
upon some hot, much debated<br />
topics.<br />
Edgar Krieger: “<strong>CIOPORA</strong> has<br />
more than 50 years history in lobbying<br />
for effective IP protection of<br />
plant breeders. It is well known that<br />
<strong>CIOPORA</strong> sees room for improvements<br />
with regard to the current<br />
level of IP protection for ornamental<br />
and fruit varieties. Therefore we<br />
have updated and will further update<br />
our positions in all areas where<br />
we have identified weaknesses and<br />
loopholes.”<br />
What are the key messages of<br />
the approved position papers?<br />
Edgar Krieger: “All four approved<br />
positions show the desire of the<br />
<strong>CIOPORA</strong> members to have a<br />
more effective protection for their<br />
innovations and to have clearer<br />
rules. For example, the paper on<br />
Minimum Distance, or, in the<br />
UPOV language: When is a variety<br />
considered to be clearly distinguishable<br />
or distinct from another variety?<br />
A sufficiently broad minimum<br />
distance between varieties is one<br />
of the most important requirements<br />
for effective PBR protection.<br />
Without a sufficient distance, the<br />
exclusive right of the holder of<br />
a protected variety is weakened.<br />
If PBR protection is granted for<br />
other, very similar varieties, these<br />
other varieties are considered to be<br />
clearly distinguishable from the<br />
protected variety, and thus fall out<br />
of the scope of the protection of this<br />
variety. If a breeder does not have<br />
exclusivity for his variety, he cannot<br />
grant exclusivity to his propagators<br />
or growers. The competitors of the<br />
propagators or growers can produce<br />
a very similar product. The result<br />
is overproduction combined with<br />
undercutting competition.<br />
In today´s reality, based on the<br />
UPOV 1991 Act, even a very<br />
small difference between two<br />
varieties makes the varieties clearly<br />
distinguishable in the eyes of the<br />
examination offices. Based on<br />
a pure botanical approach, all<br />
characteristics of a species are<br />
considered to be equally essential.<br />
In contrast to the UPOV 1978 Act,<br />
no differentiation is made anymore<br />
between characteristics important<br />
or unimportant for a variety. As a<br />
consequence, even a difference in<br />
one unimportant characteristic can<br />
make a variety clearly distinguishable<br />
from another variety in the<br />
eyes of the examination offices.<br />
<strong>CIOPORA</strong> requests to stop this<br />
trend and to re-establish rules<br />
that safeguard a sufficiently broad<br />
distance between varieties. Some<br />
of the key statements in the paper<br />
read that:<br />
• <strong>CIOPORA</strong> demands a sufficient<br />
minimum distance between<br />
varieties for an effective Plant<br />
Variety Right,<br />
• since new varieties are bred,<br />
selected and introduced mainly<br />
for commercial targets, the requirement<br />
‘clearly’ should be seen<br />
as a judgmental and evaluative<br />
requirement, and should not end<br />
in a simple search of a botanical<br />
difference,<br />
• the requirement ‘clearly distinguishable’<br />
should be assessed on<br />
characteristics important for the<br />
crop concerned,<br />
• differences in only unimportant<br />
characteristics should not lead to<br />
a clearly distinguishable variety.<br />
Andrea Mansuino<br />
Andrea Mansuino is the President of <strong>CIOPORA</strong>.<br />
He has been active in horticultural business since<br />
1987 and is a fourth generation nurseryman,<br />
whose family has been in breeding of ornamentals<br />
for almost a century. Andrea Mansuino owns a<br />
nursery in Sanremo, which, beside the breeding<br />
and production of ornamentals and foliage, is<br />
involved in the production of energy from renewable<br />
resources. Andrea Mansuino is also a shareholder<br />
of the NIRP International, the Director of Research<br />
and Development at NIRP East Africa Ltd. and the<br />
President of the Confagricoltura Liguria. At the<br />
<strong>CIOPORA</strong> AGM <strong>2014</strong> in The Hague, Mr. Mansuino<br />
was re-elected as President of <strong>CIOPORA</strong> for the<br />
second term.<br />
In other words, in order to be<br />
clearly distinguishable, the distance<br />
between two varieties in regard to<br />
their important characteristics must<br />
be sufficiently broad. Particularly<br />
in regard to pseudo-qualitative<br />
characte ristics and quantitative<br />
characteristics, a difference of only<br />
one note in general should not be<br />
considered as a sufficiently broad<br />
distance. The decision should be<br />
made on a crop by crop basis.<br />
>>><br />
<strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong> | www.FloraCulture.eu 27
<strong>CIOPORA</strong><br />
Varieties with the same note in the UPOV testguideline<br />
for a given characteristic should not<br />
be considered to be clearly distinguishable with<br />
respect to that characteristic. The possibility to<br />
search for a difference in a subsequent growing<br />
trial, if such difference was not clear in the<br />
first, properly performed examination should be<br />
eliminated.<br />
The possibility of randomised ‘blind’ testing in<br />
case of doubts over the distinctness of a candidate<br />
variety should also be eliminated. In case of doubt<br />
over distinctness, the candidate variety cannot be<br />
considered to be clearly distinguishable from the<br />
reference variety.<br />
Andrea Mansuino: “I would like to add that we<br />
learned from our members that not in all species<br />
the situation is equally critical. In many cut-flower<br />
crops, e.g. the distances between varieties seem to<br />
be sufficient at the moment. However, the general<br />
UPOV rules, such as TGP 3 and TGP 9, which<br />
are applicable to all species, allow for very small<br />
distances in all crops. Taking this into consideration,<br />
we indeed aim at changing the general<br />
UPOV rules, but intend to ask for the concrete<br />
implementation of broader distances in critical<br />
crops, by amending the respective UPOV Test<br />
Guidelines first. Anyway, the key for success in<br />
this matter is to reach a common understanding<br />
between breeders and PBR offices, including the<br />
examiners, on the purpose of distinctness – that<br />
it is not only about a mere botanical assessment of<br />
varieties.”<br />
You also approved a Position on the<br />
Scope of the Right. What is its target?<br />
Edgar Krieger: “While the Position Paper on<br />
Minimum Distance targets the horizontal scope<br />
of protection, i.e. the relationship between<br />
breeders, the position on the Scope of the Right<br />
targets the vertical scope of protection, i.e.<br />
between breeders, propagators, growers and trade.<br />
First of all, <strong>CIOPORA</strong> requests from UPOV and its<br />
member countries to harmonize the definition of<br />
one of its key terms – propagating material. UPOV<br />
does not offer a definition of propagating material,<br />
and as a result, there are several different definitions<br />
of propagating material in the UPOV countries,<br />
so that one and the same material in one<br />
territory is considered to be propagating material,<br />
while it is harvested material in another. Propagating<br />
material should include any reproductive<br />
or vegetative material of a plant from which,<br />
whether alone or in combination with other parts<br />
or products of that or another plant, another plant<br />
with the same characteristics can be produced. A<br />
harmonised definition is key in a globalised world,<br />
because it causes confusion in the international<br />
trade if material changes its status depending on<br />
the legislation in different territories. Only material<br />
of a variety that is not capable, by any means,<br />
General session of the <strong>2014</strong> AGM – IP debate.<br />
of producing another plant with<br />
the same characteristics should be<br />
considered to be harvested material<br />
in the legal sense.<br />
In regard to harvested material –<br />
such as most fruits – and products<br />
that are directly obtained from material<br />
of a protected variety – such<br />
as juice – <strong>CIOPORA</strong> requests that<br />
these products should be protected<br />
per se, too.<br />
Andrea Mansuino: “Such clarification<br />
and extension of the protection<br />
is in the benefit of the entire<br />
production and trade chain. Clarity<br />
is a precondition to establish fair<br />
competition. Lack of clarity is used<br />
mainly by dishonest players, who<br />
benefit at the cost of the honest.<br />
We know that the licensees of our<br />
breeders want them to enforce<br />
their rights against infringers in a<br />
robust way, in order to establish a<br />
level playing field for all. Therefore,<br />
a sufficiently broad scope of<br />
protection, covering all products of<br />
a variety, is necessary. This will not,<br />
in general, change the situation for<br />
the licensees of the breeders, but<br />
only for the dishonest players.<br />
Additionally, we must face the fact<br />
that several countries in the world<br />
are still not willing to provide effective<br />
IP protection for plants, but<br />
nevertheless stimulate the production<br />
of horticultural products in<br />
their countries and the export of<br />
these products. This creates unfair<br />
competition among countries and<br />
their people and is contrary to the<br />
spirit of the WTO and the TRIPS<br />
agreement, according to which all<br />
countries should have access to the<br />
global trade and in return grant<br />
effective Intellectual Property<br />
protection. The current cascadesolution<br />
in the UPOV 1991 Act,<br />
which allows breeders to enforce<br />
their right on harvested material<br />
only under conditions and limitations,<br />
does not cure this situation<br />
and is not suitable for a globalised<br />
economy since it hampers the international<br />
exploitation of varieties.”<br />
Edgar Krieger: “By the way: in<br />
Patents all manifested products of<br />
an invention fall under the scope<br />
of the Patent. If a plant comprises a<br />
patented gene, the plant and all of<br />
its parts fall under the Patent as long<br />
as they contain the patented gene<br />
and the gene performs its function.<br />
For breeders it is hard to accept that<br />
they should not benefit from equally<br />
effective protection, too.”<br />
You have also re-shaped your<br />
position on the Breeders’<br />
Exemption. The breeders’<br />
exemption is seen by many<br />
people as one of the corner<br />
stones of the UPOV system.<br />
What changes does <strong>CIOPORA</strong><br />
want to see?<br />
Edgar Krieger: “Indeed, the<br />
breeders´ exemption has been<br />
imbedded in the UPOV PBR system<br />
since its beginning and is a unique<br />
feature in IP protection systems.<br />
But what exactly is the breeders´ exemption?<br />
The breeders´ exemption<br />
as it stands today consists of two<br />
components: first, the free use of<br />
protected plant material for further<br />
breeding and, second, the – limited<br />
– commercialisation of the outcome<br />
of such breeding. I have already<br />
written in last year’s <strong>Chronicle</strong> that<br />
the current breeders´ exemption<br />
has a structural weakness. What<br />
<strong>CIOPORA</strong>, therefore, wants is not a<br />
change of the breeders´ exemption,<br />
but a rectification of its structural<br />
weakness.<br />
<strong>CIOPORA</strong> supports a breeders´<br />
exemption that contains the use<br />
of commercialised plant material<br />
of protected varieties for further<br />
breeding. In regard to the second<br />
part of the exemption, <strong>CIOPORA</strong><br />
requests that the commercialisation<br />
28 www.FloraCulture.eu | <strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong>
of any variety, which falls under the<br />
scope of a protected variety, shall<br />
require the authorisation of the<br />
title holder of the protected variety.<br />
The breeders´ exemption should<br />
therefore read: “The breeder’s right<br />
shall not extend to acts done for the<br />
purpose of breeding other varieties.”<br />
What does this mean in<br />
practice?<br />
Andrea Mansuino: “In practice<br />
this means that the breeders´<br />
exemption should contain only the<br />
free use of protected material for<br />
further breeding, but no reference<br />
to the commercialisation of the new<br />
breeding product anymore. If<br />
a new variety which results from<br />
any kind of breeding (i.e. crossing<br />
and selection, mutating, genetic<br />
modification, etc.) falls under the<br />
scope of a protected variety (not<br />
only of the variety that has been<br />
used for breeding the new variety),<br />
it must not be commercialized<br />
without the authorisation of the<br />
title holder of the protected variety.<br />
The concept is similar to the<br />
‘breeders’ exemption’ in the new<br />
Unitary Patent in the EU or in the<br />
Patent law of Germany and France.<br />
In practice, this approach to the<br />
breeders´ exemption does not bring<br />
a change to the current situation,<br />
because already now EDVs, varieties<br />
not clearly distinguishable and<br />
varieties requiring repeated use are<br />
blocked from commercialisation.<br />
The major change for our crops lies<br />
in the broadening of the Minimum<br />
Distance and the clarification of the<br />
EDV concept.”<br />
Finally you have approved a<br />
paper on Exhaustion. What<br />
does exhaustion mean and<br />
what does <strong>CIOPORA</strong> want to<br />
change?<br />
Andrea Mansuino: “Exhaustion<br />
generally means that products,<br />
which have been marketed by the<br />
title-holder or with his consent, in<br />
the protected territory, fall in the<br />
public domain in this territory, so<br />
that the title-holder can exert his<br />
right to said products only once in<br />
this territory. However, the exhaustion<br />
provision in the UPOV 1991<br />
Act is broader than this. It covers<br />
not only acts concerning the plant<br />
material marketed by the titleholder<br />
or with his consent, but also<br />
acts concerning any material derived<br />
from said material. <strong>CIOPORA</strong><br />
requests to limit the exhaustion<br />
in the UPOV system to the common<br />
scope of exhaustion in other<br />
IP laws, i.e. to exclude from the<br />
exhaustion the derived material,<br />
which we feel is unfair. In this regard<br />
the Position Paper on Exhaustion<br />
is a consequence of the Position<br />
on the Scope of the Right, which<br />
extends the protection to harvested<br />
material and processed material.”<br />
Edgar Krieger: “It is obvious and<br />
correlates to the exhaustion rules<br />
in other IP systems that the PBR<br />
in a territory in principle shall be<br />
exhausted for material, which has<br />
been marketed by the title holder<br />
or with his consent in the territory<br />
where the PBR is effective. As far<br />
as material is concerned that is produced<br />
from the material marketed<br />
by the title-holder or with his consent<br />
– let´s call it ‘produced material’<br />
– the PBR should be exhausted<br />
only for produced material, if and<br />
to such extent that its production<br />
has been licensed, and provided<br />
that the produced material is not<br />
subsequently used for other propagation<br />
or multiplication. In the first<br />
instance it is a matter of the parties<br />
concerned (title-holder and licensee)<br />
to draft the scope of the license<br />
and to precisely describe the acts<br />
covered by the license. However, in<br />
that regard it can be assumed that,<br />
if e.g. the title-holder or his licensee<br />
sells apple trees to an apple grower<br />
without any specific agreement, the<br />
apple grower has been granted an<br />
unlimited implied license to produce<br />
and sell apples from these trees<br />
in the territory, where the PBR is<br />
valid. A cut-rose grower buying rose<br />
plants without a specific agreement<br />
has the implied right to produce<br />
cut-roses for the purpose of selling<br />
them – directly or via the trade<br />
chain – to end-consumers in the<br />
territory, where the PBR is valid.<br />
However, exhaustion of any PBR<br />
shall be strictly limited to the very<br />
territory where the PBR is in effect.<br />
The marketing of material in a<br />
protected territory shall trigger the<br />
exhaustion only for this very territory.<br />
Any import of said material or<br />
Dr. Jan de Riek moderates IP Workshop on EDV during the <strong>CIOPORA</strong> AGM <strong>2014</strong><br />
in The Hague.<br />
material produced from it into another<br />
territory, where a (parallel) PBR<br />
exists, requires a separate authorization<br />
(license) of the respective title-holder.<br />
<strong>CIOPORA</strong> is opposed to any form of<br />
international exhaustion.”<br />
It seems that <strong>CIOPORA</strong> has<br />
accomplished a big milestone<br />
at the AGM <strong>2014</strong>. What will<br />
come next?<br />
Andrea Mansuino: “As we mentioned<br />
above, we still have to discuss and<br />
approve the positions on EDV and<br />
Patents, and to develop the concept<br />
of Ground-breaking Innovation. We<br />
will also have further analysis on the<br />
Additional Requests, including many<br />
aspects of the UPOV system which<br />
in our opinion should not be underestimated.<br />
We will do this in the same<br />
transparent and democratic manner<br />
as before, so that hopefully we end<br />
up with a comprehensive updated IP<br />
Position in March 2015.”<br />
Ciopora <strong>Chronicle</strong>: “Thank you for<br />
the interview. We wish <strong>CIOPORA</strong><br />
good luck in its work on the further<br />
Position Papers. We shall be looking<br />
forward to hearing the <strong>CIOPORA</strong> news<br />
after the 2015 Annual General Meeting<br />
in Tel-Aviv.” |||<br />
About the author<br />
Ron van der Ploeg is the editor in<br />
chief of FloraCulture International.<br />
<strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong> | www.FloraCulture.eu 29
Fruits<br />
The range of fruits<br />
now available to<br />
consumers around<br />
the world is large<br />
and continually<br />
expanding. Fruits<br />
also vary in stage of<br />
market development,<br />
from novel to mature<br />
products. All major<br />
fruits, however, face<br />
common forces on<br />
both the demand<br />
and supply sides.<br />
(Photo credits: Better3Fruit).<br />
Preparing for future<br />
markets for major fruits<br />
World Fruit Complex,<br />
Large and Growing<br />
Table 1 shows both the growth<br />
and diversity of the world fruit<br />
complex over the last two decades.<br />
Between 1990-92 and 2010-12,<br />
world population grew by about<br />
30 percent. In all cases except<br />
grapes, world per capita supplies of<br />
fruit grew dramatically faster than<br />
world population. Production of<br />
major fruits, excluding melons and<br />
watermelons, jumped by over 22<br />
kilograms per capita. Growth was<br />
strong both in mainstream fruits<br />
like apples and pears, and in minor<br />
fruits, whether deciduous, citrus,<br />
tropical or berries or miscellaneous<br />
other fresh fruits.<br />
The growth in the size and diverby<br />
Dr. Desmond O'Rourke<br />
All the fruits will be affected<br />
by population shifts, income<br />
swings, changes in consumer<br />
preferences, retail developments,<br />
and public and private efforts to<br />
boost consumption for health reasons.<br />
On the supply side, all fruits<br />
must compete for access to suitable<br />
land, water, energy and labour.<br />
Fruit growers differ in how they<br />
seek to tackle these challenges. The<br />
rest of this article discusses some<br />
of the common challenges being<br />
faced, and the different approaches<br />
being taken.<br />
sity of world fruit production was<br />
stimulated by increasing affluence<br />
in both developed and developing<br />
countries. Consumers demanded<br />
more fruit choices twelve months a<br />
year. Large, chain retailers catered<br />
to these demands as they expanded<br />
around the world and enlarged<br />
their produce sections. Falling<br />
trade barriers and technological<br />
advances enabled fresh fruit to be<br />
delivered over long distances, and<br />
long periods, in excellent condition.<br />
However, it will be very difficult<br />
to slow growth in fruit production<br />
in the near future even if demand<br />
falters. Production has moved<br />
increasingly to more productive<br />
environments. It is now in the<br />
hands of well-capitalized, integrated<br />
firms that manage all the functions<br />
of production, packing, storage,<br />
processing and marketing, and<br />
need early and high production<br />
to justify their large investments.<br />
Market Opportunities<br />
Shifting<br />
The best opportunities for increased<br />
fresh fruit demand are shifting<br />
from the developed world to emerging<br />
markets. Developed countries<br />
face stagnant and aging populations<br />
and slow income growth. They<br />
have low propensity to increase purchases<br />
of mainstream fruits, but are<br />
more apt to purchase high-valued,<br />
novel fruits. Many have been pummelled<br />
by the Great Recession and<br />
the subsequent debt crises. Thus,<br />
there is little prospect that the total<br />
volume of fresh fruit demanded in<br />
the developed world will increase<br />
much in the decade ahead.<br />
In contrast, many emerging<br />
markets have rapidly growing<br />
populations, rising purchasing<br />
power, a growing middle class, a<br />
rapidly modernizing food retailing<br />
sector, and buoyant demand for<br />
many imported fruits.<br />
Consumer<br />
motivations<br />
Consumer motivations for buying<br />
different fresh fruits are becoming<br />
more complicated. Consumers<br />
want access to familiar products,<br />
but also occasionally yearn for<br />
something new or different. As<br />
product choice within individual<br />
fruits, and among fruit categories,<br />
has grown, it has been a challenge<br />
for food retailers to accommodate<br />
the desires of their customers for<br />
both novelty and continuity.<br />
Consumers still care about the<br />
intrinsic attributes of different<br />
fruits, but many are equally concerned<br />
about food safety, sustainability,<br />
status, and ephemeral<br />
concepts like fun or excitement.<br />
30 www.FloraCulture.eu | <strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong>
Table 1. World: Per Capita Supplies of Major Fruits and Fruit Categories, 1990-92, 2000-02 and 2010-12 (kilograms)<br />
Category/Fruit 1990-92<br />
(kg)<br />
2000-02<br />
(kg)<br />
2010-12<br />
(kg)<br />
Change 1990-92 to<br />
2010-12 (%)<br />
Apples 7.73 9.27 10.63 + 37.5<br />
Other Deciduous 6.06 7.76 9.70 + 60.1<br />
Total Deciduous 13.79 17.03 20.33 + 47.4<br />
Total Grapes 10.92 10.10 9.74 – 10.8<br />
Oranges 9.67 9.99 9.86 + 2.0<br />
Other Citrus 5.43 7.05 8.72 + 60.6<br />
Total Citrus 15.10 17.04 18.58 + 23.0<br />
Bananas 9.05 10.82 14.95 + 65.2<br />
Other Tropical 14.33 16.35 19.76 + 37.9<br />
Total Tropical 23.38 27.17 34.71 + 48.5<br />
All Berries 0.77 0.93 1.08 + 40.3<br />
All Other Fresh 2.94 3.95 4.58 + 55.8<br />
Total Fruits 66.90 76.22 89.02 + 33.1<br />
Source: UN, FAO, FAOSTAT database online.<br />
Future certain –<br />
heightened competition<br />
The trends in fruit supplies,<br />
marketing opportunities and<br />
consumer motivations mean that<br />
in the next ten years competition<br />
within the fruit category will become<br />
even more intense. There will be<br />
strong downward pressure on producer<br />
prices. Many firms will seek<br />
to survive by lowering unit costs,<br />
either through more efficient use<br />
of inputs, or through greater output<br />
per hectare. Unfortunately, increased<br />
yields will increase the risk of global<br />
supplies outrunning demand.<br />
Salvation through<br />
breeding advances<br />
Over the last two to three decades,<br />
many progressive fruit growers<br />
have sought to escape the downward<br />
price squeeze in commodity<br />
markets by differentiating their<br />
products through brands,<br />
marks of excellence, protected<br />
geographical indicators or other<br />
methods. However, the small price<br />
premiums earned have helped little<br />
when overall price levels sank.<br />
In contrast, the breeding of new<br />
varieties has brought significant<br />
gains in individual fruit categories.<br />
The development of seedless grapes<br />
and easy-peeler oranges has transformed<br />
those categories. In summer<br />
fruits, there has been a steady<br />
parade of new, named varieties. In<br />
the case of sweet cherries, the focus<br />
was on breeding earlier or later<br />
varieties to lengthen the season and<br />
avoid the dramatic price drops that<br />
used to occur during a single peak<br />
harvest. This effort has so far been<br />
only partially successful.<br />
Can apples be<br />
the exception?<br />
There is much optimism about<br />
the value of breeding new apple<br />
varieties. Varieties such as Jonagold,<br />
Elstar, Gala, Fuji and Braeburn<br />
earned large price premiums<br />
for several years. When those<br />
premiums eroded with increasing<br />
volumes, a consensus developed<br />
among the apple industry leaders<br />
that price premiums could be<br />
maintained for longer periods if<br />
the Intellectual Property of the<br />
new variety was tightly controlled,<br />
the number of trees planted and<br />
volume marketed was limited, and<br />
if the image of the new variety was<br />
protected through tight control of<br />
names, packaging and promotion.<br />
These are usually referred to as<br />
‘managed’ or ‘club’ varieties.<br />
(Photo credits: Better3Fruit). >>><br />
<strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong> | www.FloraCulture.eu 31
Fruits<br />
Apple orchard. (Photo credits: Better3Fruit).<br />
When there were few club varieties,<br />
the club sponsors could select<br />
which individual producers, packers<br />
or marketing firms they wished to<br />
handle their variety. Often, licenses<br />
were granted to firms, producing<br />
districts and countries that were<br />
already highly competitive. The<br />
remaining producers, districts and<br />
countries, fearing that they would<br />
increasingly fall behind, agitated<br />
successfully for their own breeding<br />
programs that could develop new<br />
varieties suitable for local conditions.<br />
At the same time, the drive<br />
to breed winning new varieties<br />
has intensified in university and<br />
government research centres and in<br />
the private sector.<br />
The result of all this activity is<br />
that there are now many new club<br />
varieties competing to attract new<br />
members, a reversal of the past<br />
situation.<br />
Changing motivations<br />
for adopting new<br />
varieties<br />
In the past, the goal of many<br />
breeders was to find a new variety<br />
that could become a blockbuster<br />
like Gala or Fuji. However, the<br />
underlying principle of most club<br />
organizations, namely, maintaining<br />
price premiums through controlling<br />
volume, acts as a natural brake<br />
on extensive production.<br />
In the meantime, most integrated<br />
producer-packer-marketers have<br />
altered their expectations for new<br />
varieties. The large retailers that<br />
they serve want a diverse portfolio<br />
of apple varieties, including, twelvemonth<br />
supplies of major varieties<br />
like Golden Delicious, Gala or Pink<br />
Lady and access to one or more<br />
exclusive varieties so they can<br />
distinguish their apple offerings<br />
from those of competing retailers.<br />
What is a breeder to do?<br />
Given these changing conditions,<br />
breeders and sponsors of new apple<br />
varieties need to view their task as<br />
creating both a new product and<br />
a new business to handle that<br />
product. The new product must<br />
serve a specific need in the marketplace.<br />
It must be distinctive in<br />
physical attributes, in its name, the<br />
market segments it might appeal<br />
to, and the promotional support it<br />
receives.<br />
Breeders need to have clear targets<br />
for where in the market any new<br />
variety will fit. Has it mass market<br />
appeal? Can it appeal to a specific<br />
market segment? Could it be offered<br />
exclusively to selected retailers<br />
for limited periods? Since developed<br />
country markets are so crowded, is<br />
there greater potential in developing<br />
countries? Intensive market research<br />
to answer such questions should<br />
precede all breeding efforts.<br />
Sponsors of new varieties also need<br />
to have a clear business model they<br />
are pursuing, including guidelines<br />
about product, pricing, promotion,<br />
competition, market opportunities,<br />
potential breakeven point, and<br />
other aspects of the future business.<br />
They need to be able to offer the<br />
potential for significant profit to<br />
future club participants.<br />
Don’t forget<br />
the silent majority<br />
While innovation is important to<br />
every industry, it is vital to keep<br />
current mainstream varieties (what<br />
I call the ‘silent majority’) healthy.<br />
Even within the next decade less<br />
than 3 percent of the world apple<br />
production will be club varieties.<br />
Given the intense competition from<br />
so many other fruits and snacks,<br />
and weakening demand among the<br />
young, unless the silent majority<br />
can find a large promotional voice,<br />
the entire apple industry in the<br />
developed world could face further<br />
shrinkage. That fate can still be<br />
avoided. |||<br />
About the author<br />
After receiving a M.A. (1968) and PhD (1970) in agricultural economics at<br />
the University of California, Davis, Dr. O’Rourke was a faculty member in the<br />
Department of Agricultural Economics at Washington State University in<br />
Pullman for 30 years. He specialized in international marketing of fresh fruits.<br />
From 1985 to 2000, he also headed WSU’s IMPACT Center, a multidisciplinary<br />
program that introduced many new agricultural products, new technologies<br />
and new databases on trade issues.<br />
Dr. O’Rourke is the author of four books and numerous professional journal<br />
articles, bulletins, and popular reports. After retiring from Washington State<br />
University In May 2000, he became president of his own consulting firm,<br />
Belrose, Inc. which publishes a monthly newsletter, The World Apple Report<br />
and a number of annual reviews of various fruit crops. The most recent special<br />
study examined ‘Asian Import Demand for Apples, Pears, Sweet Cherries and<br />
Kiwifruit: Potential to 2020.’ He has been a consultant to many government<br />
agencies, industry organizations and large businesses around the world, and is<br />
a frequent speaker at international conferences.<br />
Dr. O’Rourke was a member of the Washington State Governor’s Council of<br />
Economic Advisors from 1993 to 2012, and a reviewer on the Biotechnology<br />
panel for the Washington Technology Centre for over a decade. He is the author<br />
of numerous professional journal articles and four books, including his 1967<br />
book Marketing in Ireland, which was the first Irish textbook on the subject.<br />
32 www.FloraCulture.eu | <strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong>
Company profile<br />
‘Think global,<br />
act local’ is a<br />
frequently used<br />
slogan. But what<br />
exactly does it<br />
imply? A perfect<br />
case study to<br />
explain the<br />
implementation<br />
of this idea is<br />
the Poinsettia<br />
business. Selecta<br />
Klemm reports.<br />
by Richard Petri<br />
Poinsettia is the quintessential<br />
Christmas plant.<br />
Selecta Klemm’s Poinsettia<br />
breeding is a world of regions<br />
Poinsettia is the quintessential<br />
Christmas plant. In 1828,<br />
the American ambassador to<br />
Mexico, Joel Poinsett, discovered<br />
this beautiful shrub growing along<br />
the roadside. He took some cuttings<br />
and planted them in his greenhouse<br />
in South Carolina.<br />
From that day on the plant found<br />
its way in the world. Poinsettia<br />
are used as decoration and as a<br />
gift item during the winter season<br />
around the world. The plant is also<br />
gaining more admirers in East<br />
Asian countries, where the Westernstyle<br />
Christmas celebrations are<br />
becoming increasingly popular.<br />
In Turkey and Egypt, Poinsettia<br />
have a long tradition with no<br />
reference to Christmas.<br />
Demands from growers<br />
and consumers<br />
The business of Poinsettia<br />
means meeting the demands of<br />
thousands of growers and millions<br />
of consumers all over the world.<br />
Selecta has been working for<br />
decades on varieties suited for<br />
different regions becoming one<br />
of the world’s leading Poinsettia<br />
breeders – which highlights Selecta’s<br />
success with this crop. The mother<br />
stock plants are selected, grown<br />
and maintained in East Africa from<br />
where the cuttings are transported<br />
easily and quickly to European<br />
destinations.<br />
The finished product, however,<br />
doesn’t withstand transportation<br />
logistics too easily, which stresses<br />
the importance of local rooting<br />
stations close to the market to keep<br />
logistic lines short and to ensure the<br />
best plant quality for consumers.<br />
Major challenge<br />
Poinsettia breeding itself is another<br />
challenge. Wouldn’t it be nice to<br />
have one universal variety covering<br />
all production requirements and<br />
regional demands?<br />
Apart from the environmental and<br />
climatic impact (i.e. day length),<br />
different production standards,<br />
multiple growing approaches and a<br />
plethora of trading channels require<br />
different Poinsettia varieties for<br />
different European markets.<br />
As red is still the most important<br />
colour of Poinsettia, Selecta is<br />
currently selling a wide range of<br />
different commercial red varieties in<br />
different colour shades. A very large<br />
portion of the portfolio is taken by<br />
Christmas Feelings® Red, one of the<br />
most successful Poinsettia varieties<br />
worldwide. Christmas Feelings® is<br />
definitely a Poinsettia superstar. It is<br />
a variety of great commercial value;<br />
they branch freely and are very<br />
vigorous and productive.<br />
Mediterranean versus<br />
Scandinavian markets<br />
But while this rather compact<br />
variety is so successful in Northern<br />
Europe, the Mediterranean<br />
consumers prefer plants with<br />
a different look. In sun-kissed<br />
countries, people are used to<br />
large Poinsettia plants, grown in<br />
voluminous pots and featuring big<br />
bracts. Selecta has been working<br />
tirelessly on breeding new varieties<br />
to meet these demands and found<br />
the answer in varieties such as ‘Noel’,<br />
Poinsettia growing.<br />
‘Happy Christmas’ or the new<br />
introduction – ‘Christmas Aurora’.<br />
Scandinavian growers, on the other<br />
hand, are specialised in minishaped<br />
plants. Easy packing is<br />
essential for the Danish Poinsettia<br />
industry. Selecta’s ‘Christmas<br />
Eve’ and ‘Christmas Beauty’ are<br />
excellent mini varieties, but again<br />
‘Christmas Feelings®’ has made its<br />
way into the Danish production<br />
with an increasing market share in<br />
the total Poinsettia production.<br />
As consumers are getting more<br />
concerned about the usage<br />
of chemicals in professional<br />
horticulture. Selecta has developed<br />
a new variety, ‘Christmas Glory’,<br />
that can be grown without any<br />
plant growth regulators. It can also<br />
be used for organic production due<br />
to its resistance against any disease<br />
or pest.<br />
This mini excursion into the<br />
European Poinsettia markets shows<br />
that breeding efforts will and<br />
should never stop. With changing<br />
requirements the challenges remain<br />
in Europe – a continent of regions,<br />
a continent of local solutions offered<br />
by Selecta. |||<br />
<strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong> | www.FloraCulture.eu 33
Intellectual Property<br />
Plant breeders<br />
protect their plant<br />
varieties by Plant<br />
Variety Rights,<br />
such as Community<br />
PVRs in the EU,<br />
and Plant Patents<br />
in the US. But can<br />
Patents serve as a<br />
suitable alternative<br />
in the UPOV member<br />
states, including<br />
the EU? The answer<br />
lies in a detailed<br />
analysis of the<br />
current practice in<br />
the area of Patents<br />
for plant related<br />
innovations.<br />
by Dr. Tom H. Wittop Koning<br />
Patents - a fruitful<br />
alternative for PVRs?<br />
Patens are historically intended<br />
for the fields of mechanics<br />
and chemistry, in particular<br />
for new products or methods to<br />
produce new or existing products.<br />
Patents are only granted for inventions<br />
of technical nature that are<br />
novel, inventive and are industrially<br />
applicable. Novelty is given when<br />
the subject matter of the invention<br />
is absolutely novel, i.e. not disclosed<br />
in any way anywhere in the world.<br />
This is in contrast to PVR, which<br />
can still be obtained when the<br />
variety has been commercialized for<br />
less than one year in the country of<br />
protection. An invention is considered<br />
as involving an inventive step<br />
if, in regard to the state of the art, it<br />
is not obvious to the skilled person.<br />
Industrial applicability is given<br />
when the invention can be made<br />
or used in any kind of industry, including<br />
agriculture. However, mere<br />
aesthetical creations are excluded<br />
from patentability, whereas PVRs<br />
focus on ornamental features that<br />
are mainly of aesthetical nature.<br />
Furthermore, plant varieties, as well<br />
as essentially biological processes<br />
for their production, are excluded<br />
from patentability.<br />
Are patents suitable<br />
for breeders?<br />
At first sight, it may therefore be<br />
difficult or even impossible to<br />
obtain a Patent for plants. However,<br />
the above patentability requirements<br />
can indeed be applied to<br />
plants, and for methods of obtaining<br />
thereof, as long as the plants<br />
encompass more than a single<br />
variety and comprise a new technical<br />
feature. Further, the claimed<br />
methods should not be essentially<br />
biological. The presence of a new<br />
technical feature can, for example<br />
be resistance to a certain plague, or<br />
the capacity of prolonged flowering.<br />
However, let us look further into<br />
the possible pitfalls for breeders<br />
when it comes to patenting.<br />
Sakura Cress ® (Photo credits: Koppert Cress).<br />
The breeders’ exemption<br />
The breeders’ exemption is one of<br />
the pillars of the PVR, embedded<br />
in the UPOV treaty. It guarantees<br />
the availability of protected plant<br />
varieties for further breeding. To<br />
those breeders, the exemption<br />
may be very attractive, but less so<br />
for breeders who develop varieties<br />
from scratch or from their own<br />
varieties. The Patent system does<br />
not provide for such exemption, at<br />
least not to such a broad extent. The<br />
EU directive 98/44/EC, which is<br />
implemented in all European jurisdictions,<br />
allows breeders to exploit<br />
a PVR in case the variety would be<br />
covered by a Patent. In that case,<br />
the breeder can apply for a compulsory<br />
license for non-exclusive use<br />
of the Patent. The patentee, in his<br />
turn, will be entitled to a crosslicense<br />
to use the plant variety. So<br />
there is no free use of plant varieties<br />
covered by a Patent. In some states,<br />
such as in the Netherlands, the<br />
Patent act is a bit more lenient<br />
towards breeders. Breeders may<br />
use patented biological material<br />
in order to develop and breed new<br />
varieties. However, once a variety<br />
is developed, the exemption is<br />
exhausted. A breeder cannot exploit<br />
a new plant variety without infringing<br />
the Patent and needs a compulsory<br />
license from the patentee.<br />
Whether such ‘broadening’ of the<br />
exemption confers any comfort to<br />
breeders is highly questionable, but<br />
at least a breeding act as such does<br />
not need licensing.<br />
Is patenting attractive<br />
for breeders?<br />
Yes, it may very well be. One of<br />
the major advantages is the absence<br />
of the breeders’ exemption<br />
strengthening the right of the<br />
patentee. Further, a Patent is<br />
directed to plants comprising a<br />
technical feature, meaning that<br />
not only a single variety, but any<br />
plant comprising the said technical<br />
feature will be protected. A Patent<br />
further offers the possibility to<br />
claim plant progeny, plant parts,<br />
34 www.FloraCulture.eu | <strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong>
such as seeds, flowers, leafs etc., as well<br />
as methods to produce such plants.<br />
Such a method is e.g. patentable when<br />
it comprises a microbiological step, and<br />
fulfills the novelty and inventive step<br />
requirements. For example, a method<br />
to introduce a particular gene into a<br />
plant conferring a new characteristic to<br />
the said plant is patentable.<br />
Is a non-essentially<br />
biological step a must<br />
to qualify for Patent?<br />
Although, as dictated by Art. 53(b)<br />
of the European Patent Convention<br />
and the corresponding national laws,<br />
essentially biological methods are not<br />
patentable, Patents have meanwhile<br />
been granted on plants displaying a<br />
technical effect, that are produced by<br />
conventional breeding techniques.<br />
A European Patent EP1290938 in<br />
the name of Taste of Nature has been<br />
granted for radish plants, obtainable<br />
by screening radish plants for their<br />
ability to produce sprouts having<br />
purple colouring, for selfing and/<br />
or crossing said plants for several<br />
generations and for selecting progeny<br />
with sprouts with purple colouring,<br />
wherein the sprout comprises at least<br />
800 nmol anthocyanins per gram<br />
sprout. This is a plant, obtainable by<br />
conventional breeding techniques. The<br />
invention lies in the fact that it was<br />
observed that purple colour coincided<br />
with a high anthocyanin content, the<br />
anthocyanin having a positive effect<br />
on human health. So the purple colour<br />
was not a mere esthetical aspect (not<br />
patentable as such) but had a technical<br />
effect, namely the provision of a useful<br />
compound or more healthy sprouts.<br />
The sprouts are not regarded as a single<br />
plant variety, as the claimed invention<br />
covers many different offsprings and<br />
progenies thereof, i.e. many different<br />
varieties.<br />
No certainty yet<br />
Nevertheless, last words have not<br />
been yet spoken in this respect. The<br />
European Patent Office has now,<br />
in the latest cases (EP1069819 and<br />
EP1211926) addressed its questions<br />
to the Enlarged Board of Appeal on<br />
whether plants obtained by biological<br />
processes should be excepted from<br />
being patentable, as the method to<br />
obtain such plants is excepted from<br />
Sakura Cress ® (Photo credits: Koppert Cress).<br />
patentability by law. Until a decision<br />
is reached, the European Patent has<br />
now put on hold all Patent prosecution<br />
proceedings, wherein plants produced<br />
by conventional breeding and selection<br />
are claimed. Although these cases<br />
are still pending, the Dutch court in<br />
second instance has recently (May 28,<br />
2013) tried the above radish case and<br />
concluded that a plant, albeit a product<br />
of a biological breeding method that<br />
as such is excluded from patentability,<br />
is not automatically excepted from<br />
patentability. In this case, the radish<br />
plants were held patentable as the<br />
plants were novel and inventive (no<br />
sprouts with purple colour and having<br />
high anthocyanin content were known<br />
or obvious to the skilled person).<br />
Purple anthocyanin containing radish<br />
sprouts would infringe this Patent.<br />
Again: Patents<br />
for breeders?<br />
The Patent system is open for technical<br />
inventions on plants that are not<br />
limited to a single plant variety. If the<br />
plants are produced by a method that<br />
comprises more than just conventional<br />
breeding, the method and the plants<br />
may be patentable. The EPO must<br />
however still decide whether plants<br />
produced by breeding will remain<br />
patentable in the future in Europe.<br />
The tendency seems to be in favour of<br />
patentability. By patenting, breeders<br />
protect their innovative plants from<br />
free use by others for further development<br />
of varieties, conferring improved<br />
protection. |||<br />
About the author<br />
Tom H. Wittop Koning, PhD, is European and Dutch<br />
Patent attorney and partner of the Dutch IP law firm<br />
AOMB, and manages the biotech group from<br />
AOMB’s The Hague office.
Intellectual Property<br />
The final proposals<br />
for a revised<br />
Regulation on<br />
Community<br />
trademarks (CTMR) 1<br />
and a Directive on<br />
the Harmonisation<br />
of the Laws of the<br />
European Member<br />
States (Trademark<br />
Directive) 2 relating<br />
to trademarks<br />
were published<br />
almost a year ago.<br />
They received<br />
positive feedback<br />
from jurists and<br />
stakeholders<br />
alike, but it seems<br />
doubtful whether<br />
stakeholders in the<br />
green business will<br />
always benefit from<br />
the reform of the EU<br />
trademark system.<br />
Trademarks and<br />
variety denominations -<br />
harmonisation underway?<br />
Various names are used as trademarks. Nevertheless, the symbol ® should<br />
only be used if they are, in fact, registered (Photo credits: Thomas Leidereiter).<br />
by Thomas Leidereiter<br />
Most plant breeders assign<br />
not one, but two names<br />
to their newly bred<br />
varieties. In addition to the variety<br />
denomination used for the PVR<br />
application a (word) trademark<br />
is also used. Although the PVR<br />
and the trademark system cover<br />
different objects of protection 3 , the<br />
official variety denomination is also<br />
protected under the PVR laws to<br />
some extent, as it constitutes a<br />
PVR infringement if a protected<br />
denomination is used for another<br />
variety of the same or a similar<br />
species. But what happens in the<br />
event that a variety denomination<br />
and a trademark collide?<br />
A short case study<br />
Breeder A was granted a Community<br />
PVR in 2007 for his<br />
wheat variety ‘DISCUS’. Shortly<br />
afterwards, trademark owner B<br />
filed an application for a Community<br />
trademark also for the term<br />
‘DISCUS’ covering “living plants<br />
and parts of living plants, sowing<br />
seeds, cut flowers in class 31”.<br />
After the grant of protection was<br />
issued, breeder C filed an application<br />
for a perennial ryegrass variety<br />
with the CPVO. As denomination<br />
he proposed, as you might<br />
have guessed by now, the name<br />
‘DISCUS’ also. When B became<br />
aware of the new PVR application,<br />
he filed an objection against the<br />
proposed denomination. In consequence,<br />
A – sister company of C –<br />
filed an application to cancel B’s<br />
trademark claiming, inter alia, that<br />
the trademark exclusively consisted<br />
of a sign that serves to designate the<br />
kind of goods covered by it (i.e.<br />
that it is a generic term). The cancellation<br />
division of the Office for<br />
Harmonisation in the Internal<br />
Market (OHIM) cancelled the<br />
Community trademark ‘DISCUS’<br />
on the ground that it would be<br />
merely descriptive for all goods<br />
covered by the registration and,<br />
thus, could not be monopolised.<br />
The Offices’ reaction<br />
After the DISCUS case revealed<br />
that there are certain overlaps between<br />
both the Community PVR<br />
and the Community trademark<br />
system, representatives of the<br />
Offices gathered and worked out<br />
amended guidelines for the OHIM<br />
trademark examiners. The newly<br />
applied rules read: “Whenever a<br />
CTM application is filed to register<br />
36 www.FloraCulture.eu | <strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong>
a mark containing wording for<br />
live plants, agricultural seeds, fresh<br />
fruits, fresh vegetables or equivalent<br />
wordings, the examiner must<br />
ensure that the term making up the<br />
trademark does not coincide with<br />
the name of a specific plant variety.<br />
In order to verify this, the examiner<br />
will first check the CPVO register<br />
to ascertain if the trademark applied<br />
for happens to coincide with a<br />
plant variety name already entered<br />
in the mentioned register. If the<br />
check shows an identical entry in<br />
the register, the examiner must raise<br />
an objection since plant variety<br />
names entered in the register are<br />
considered to be descriptive and<br />
cannot be monopolised.”<br />
The rules even go on to state:<br />
“Lastly, it should be noted than an<br />
objection should be raised not only<br />
in respect of applied for trademarks<br />
that are identical to (or are slight<br />
variations of) a plant variety name<br />
that appears in the mentioned<br />
CPVO register or is used in trade as<br />
the generic name of a plant variety,<br />
but also in respect of any good and/<br />
or service which can be directly<br />
linked to the plant variety name in<br />
question.”<br />
Or, in short, no Community trademarks<br />
for variety denominations<br />
of a registered Community PVR<br />
should be granted to plants or related<br />
products. The approach seems<br />
reasonable. After all, each variety<br />
must have one free name so that<br />
it can be referred to by everybody<br />
after the PVR has lapsed. And for<br />
everyone who tried to obtain a<br />
US-trademark in class 31, the<br />
situation is familiar. The USPTO<br />
does not accept trademark applications<br />
covering terms that have<br />
already been used as varietal names.<br />
What seemed irritating, however,<br />
is that under the guidelines only<br />
denominations of registered Community<br />
PVR were immediately<br />
considered generic. One might ask<br />
why a distinction should be made<br />
between denominations of varieties<br />
protected on a European PVR and<br />
those ‘only’ covered by national<br />
PVR; not even to mention old varieties<br />
or varieties with lapsed PVR<br />
titles. But OHIM’s revised manual<br />
tried to address this issue as follows:<br />
“Whenever a CTM application<br />
consists of wordings for live plants,<br />
agricultural seeds, fresh fruits, fresh<br />
vegetables or equivalent ones, the<br />
examiner will have to verify, by<br />
means of internet research, whether<br />
the term making up the applied<br />
for trademark coincides with the<br />
name of a specific plant variety<br />
that happens to be already used in<br />
trade”. Admittedly, the outcome of<br />
such research and its interpretation<br />
seems rather unpredictable.<br />
An ‘unlawful<br />
administrative practice’?<br />
Actually, the OHIM decision in<br />
the DISCUS case and the revised<br />
manual for examination seem to<br />
run somewhat contrary to the<br />
European trademark laws in force.<br />
Neither the CTMR nor the current<br />
Trademark Directive mention<br />
plant varieties or their denominations<br />
with a single word. In fact,<br />
variety denominations, according<br />
to the law, can only be excluded<br />
from trademark protection as ‘other<br />
intellectual property rights’. 4 This is<br />
the case for example in Germany.<br />
Under § 13(2)(4) of the German<br />
Trademark Act, the holder of a<br />
PVR title has to bring a court action<br />
5 for the cancellation of a trademark.<br />
A variety denomination is<br />
neither seen as an absolute ground<br />
for refusal nor does it give a right to<br />
oppose a trademark application.<br />
More confusion<br />
underway<br />
To sum up: the future relating to<br />
this issue does not look promising.<br />
While the proposal for a revised<br />
CTMR does declare variety<br />
denominations of registered Community<br />
PVR as absolute grounds<br />
for refusal of a trademark application,<br />
the proposal for a Trademark<br />
Directive remains entirely silent<br />
about variety denominations.<br />
If the revised rules entered into<br />
force unaltered, the confusion<br />
would be complete: denominations<br />
of varieties protected as<br />
Community PVRs will be an<br />
immediate obstacle to Community<br />
trademarks. Whether the examiner<br />
remains obliged to also search for<br />
other customary denominations<br />
is uncertain but not likely. To my<br />
mind, the legislator would be well<br />
advised to consider at least the demand<br />
of the International Chamber of Commerce<br />
6 and to also include denominations<br />
of national PVRs in the CTMR.<br />
Whether the trademark practice in<br />
the individual EU member states will<br />
change is even less foreseeable. As no<br />
harmonisation is intended, one may<br />
only guess how variety denominations<br />
of any kind are going to be dealt with<br />
by the national trademark offices in<br />
the future.<br />
Conclusions<br />
Speaking solely about varietal names,<br />
the envisaged revision of the EU<br />
trademark system is highly detrimental<br />
to legal certainty and, consequently,<br />
to the interests of breeders and other<br />
trademark holders alike. One simple<br />
solution to prevent name collisions,<br />
already adopted by many breeders,<br />
is the use of coded denominations.<br />
A trademark ‘12345PVR’ covering<br />
‘roses’ might at some stage be applied<br />
for, but such cases seem less likely. In<br />
any event, anybody filing a national or<br />
Community trademark application<br />
in class 31 will face a great deal of<br />
uncertainty once the proposals have<br />
been adopted. |||<br />
1. Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE<br />
COUNCIL amending Council Regulation (EC) No 207/2009 on the Community<br />
trademark; COM/2013/0161 final - 2013/0088 (COD)<br />
2. Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE<br />
COUNCIL to approximate the laws of the Member States relating to trademarks;<br />
COM/2013/0162 final - 2013/0089 (COD)<br />
3. The Community PVR system, for example, covers variety constitutes, i.e. plant<br />
material capable of producing plants of the protected variety, while trademarks<br />
are granted for names, logos, sounds, colours, shapes and the like.<br />
4. Within the meaning of Article 4 of the Trademark Directive and Art. 53(2)(b) CTMR.<br />
5. If the trademark holder refuses to withdraw the registration upon a respective<br />
motion before the trademark office.<br />
6. Expressed in their Comments on the European Commission Proposals for Reform<br />
of the EU Trademark System of 1 July 2013.<br />
About the author<br />
Thomas Leidereiter is dealing with Intellectual Property in general and<br />
Plant Variety Rights (“PVR”) matters in particular. After 14 years at a major<br />
German law firm, Thomas Leidereiter recently founded his own firm, Green<br />
Rights, in Hamburg. With an IP background covering trademarks, designs,<br />
copyrights and the law on unfair competition, he is advising clients on<br />
all aspects of protection of plant innovations, including IP licensing and<br />
enforcement. Thomas has been involved in major court cases dealing with<br />
fundamental PVR issues in the ornamental sector as well as questions<br />
of PVR infringements. He is a member of the Expert Committee on the<br />
Protection of Plant Innovations at GRUR, a member of <strong>CIOPORA</strong>, its<br />
lawyers’ panel, and of <strong>CIOPORA</strong> Germany.<br />
<strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong> | www.FloraCulture.eu 37
Intellectual Property<br />
Despite the broad<br />
legal remedies<br />
provided by<br />
Ukrainian Plant<br />
Variety Right (PVR)<br />
laws, enforcement<br />
of Plant Breeders’<br />
Rights (PBR) can<br />
be challenging due<br />
to the rather small<br />
number of judicial<br />
precedents in this<br />
field, which are<br />
primarily confined<br />
to the issues of<br />
authorship, author’s<br />
remuneration and<br />
employee’s varieties.<br />
by Natalia Stetsenko<br />
Protecting Plant Variety<br />
Rights in Ukraine<br />
Having first ratified the<br />
Act 1978 of the UPOV<br />
Convention in 1995,<br />
Ukraine implemented the 1991 Act<br />
of UPOV in 2006 in a new PVR<br />
law providing for protection of all<br />
plant genera and species.<br />
The scope of rights granted to plant<br />
breeders in Ukraine is basically the<br />
same as in any other UPOV member<br />
state. The law simultaneously<br />
provides for both judicial and<br />
administrative measures for PBR<br />
enforcement.<br />
Enforcement of<br />
Plant Variety Rights<br />
The governmental agency responsible<br />
for the enforcement of PVR is<br />
the State Agricultural Inspection of<br />
Ukraine, which was re-organised<br />
in April 2013. This body, also<br />
acting as Ukraine’s representative<br />
before ICTA, OECP and other<br />
international organisations, has<br />
a broad range of competences,<br />
including the right to inspect<br />
producers and sellers of planting<br />
stock. Based on the results of such<br />
checks, the inspection may discover<br />
PVR infringements and initiate<br />
administrative proceedings. It is<br />
also authorised to refer the infringement<br />
records to the prosecutor’s<br />
office and the police if the PVR<br />
infringements comprise elements of<br />
a criminal offence<br />
Civil and criminal<br />
actions<br />
It is possible to bring both civil and<br />
criminal actions against infringers<br />
of PVR. Under the provisions of<br />
the civil code of Ukraine, final<br />
remedies that may be sought<br />
against infringers of all types of<br />
intellectual property rights (PVR)<br />
include injunctions to restrain<br />
infringing actions, claim of<br />
damages for any loss suffered by<br />
the title holder, lost profit, seizures<br />
and destruction of the infringing<br />
material, seizure of materials and<br />
equipment used for production of<br />
the infringing material and their<br />
destruction, publication in press<br />
(Art. 432 of the Civil Code).<br />
Only actual damages can be<br />
claimed. No punitive damages are<br />
provided for by the law. In cases of<br />
patent infringements it is common<br />
practice to calculate damages based<br />
on the provisions of the existing<br />
license agreements or, if there<br />
is no agreement yet, based on a<br />
hypothetical license. This usually<br />
requires a specialised economic<br />
expertise to be conducted by<br />
certified experts.<br />
The civil law also provides for the<br />
right to claim moral damages from<br />
IPR infringers. When evaluating<br />
such cases, courts have to establish<br />
causal relation between the damage<br />
and activities of the defendant.<br />
The criminal code provides for<br />
fines, hard labour, imprisonment<br />
(up to a maximum of six years),<br />
confiscation and destruction of the<br />
infringing goods, equipment and<br />
materials used for their production<br />
(Art. 177 of the Criminal Code).<br />
The latter is supposed to be a strong<br />
deterring tool. However, in practice,<br />
there have been no criminal<br />
cases initiated by the law enforcement<br />
agencies based on PVR<br />
infringement. The involvement<br />
of the police is totally dependent<br />
on the active position of the title<br />
holders, since the proceedings<br />
against crimes covered by Article<br />
177 may be initiated only upon<br />
request of the aggrieved party.<br />
Trademarks rather<br />
than PVR<br />
Although the law provides for a<br />
wide range of legal tools to tackle<br />
PVR infringements, up to the<br />
present time, PVRs have been<br />
rarely used as a ground for legal<br />
actions. There has been less activity<br />
in fruits and ornamentals, but the<br />
seed industry has clearly shown that<br />
the title holders mostly rely on their<br />
trademarks rather than on PVRs<br />
in their efforts to enforce their<br />
intellectual property rights.<br />
The same is the case with border<br />
measures. As of June 1, 2012,<br />
with implementation of the new<br />
Customs Code, the application of<br />
border measures was extended to<br />
plant varieties, which means that<br />
plant varieties protected in Ukraine<br />
can be recorded in the customs<br />
register similarly to trademarks,<br />
inventions, designs and other IPRs.<br />
However, so far no PBRs were<br />
registered with customs.<br />
A matter of time<br />
Under the circumstances of the<br />
lack of relevant legal practice and<br />
specific nature of PVR, trademark<br />
may be used as an alternative tool<br />
for enforcing PVR, both at the<br />
border and within the internal<br />
market. Nonetheless, taking into<br />
account that Ukraine has sufficient<br />
R&D resources, necessary facilities<br />
and expertise for performing DNA<br />
tests and other relevant researches<br />
involved with PVR enforcement, as<br />
well as adequate legal tools provided<br />
by the current laws, building up<br />
a relevant practice in the field of<br />
PVR enforcement is only a matter<br />
of time. |||<br />
About the author<br />
Natalia Stetsenko is an IP lawyer<br />
who has been working with<br />
Pakharenko & Partners, one of the<br />
biggest IP and general law firms in<br />
Ukraine, since 1997. Her practice<br />
focuses on developing IP protection<br />
strategies for domestic and international<br />
clients, IPR enforcement,<br />
patent and trademark litigation.<br />
Natalia also heads the firm's<br />
division responsible for all aspects<br />
of Plant Variety Protection,<br />
registration of PBRs, licensing and<br />
advising on regulatory issues.<br />
38 www.FloraCulture.eu | <strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong>
For centuries,<br />
roses have been<br />
the quintessential<br />
symbol of<br />
love, providing<br />
inspiration to so<br />
many people in<br />
different fields,<br />
especially in<br />
the ornamental<br />
horticulture and<br />
gardening industry.<br />
For a long time, the<br />
history of roses<br />
starts in hands of<br />
passionate and<br />
skilled breeders<br />
who envision and<br />
further develop<br />
existing or new<br />
colours, fragrances,<br />
shapes for specific<br />
or diversified uses<br />
of the Queen of<br />
Flowers.<br />
by Bruno Etavard<br />
Breeding, imagination<br />
and market vision<br />
Although this flower stands<br />
in the centre of the floricultural<br />
industry, the traditional<br />
image of the cultivated rose<br />
is one classic beauty coupled with<br />
tedious pest and disease control and<br />
time consuming pruning year after<br />
year. Being one of the leading rose<br />
breeders, for decades MEILLAND<br />
has been developing both directly<br />
and indirectly, long term investigation<br />
activities aiming to prove this<br />
image wrong and create a World of<br />
Colours®, not only in the cut flower<br />
sector, but also in the garden and<br />
the landscape.<br />
MEIDILAND ® - the first<br />
name ever in landscape<br />
roses<br />
During the 1980s, the situation<br />
in roses changed. After working<br />
patiently with a number of original,<br />
wild looking species, MEILLAND<br />
created and introduced new protected<br />
varieties, defined not only by<br />
improved aesthetics, but a number<br />
of problem solving features for<br />
landscape architects and endconsumers<br />
alike.<br />
At that time the breakthrough<br />
varieties, such as Meigekanu<br />
LA SEVILLANA® and Meidomonac<br />
BONICA® – the first landscape rose<br />
to be granted AARS – were a true<br />
step forward for the market with<br />
their decorative features, but also<br />
due to the ability of these varieties<br />
to be propagated by the own-root,<br />
their suitability to large scale<br />
industrial planting, their tolerance<br />
towards pests and diseases and<br />
extreme weather conditions. These<br />
varieties ranked among the first<br />
ecological and easy-care roses<br />
distributed under the same<br />
umbrella trade name worldwide.<br />
KNOCK OUT ® - the<br />
revolutionary rose family<br />
Since 2000, Will Radler has<br />
certainly revolutionised the way<br />
we think of roses. Working closely<br />
with both Star® Roses and Plants<br />
and MEILLAND during a 15-year<br />
selection process, this amateur rose<br />
breeder brought to the market a<br />
complete range of easy-to-grow<br />
varieties which don’t require any<br />
other special care except annual<br />
pruning in early spring.<br />
With such a rose at hand, the<br />
consumers of the early 21 st century,<br />
should they live in Moscow,<br />
San Francisco or Tokyo, could start<br />
to forget what they know about<br />
roses being difficult to grow.<br />
From Radrazz KNOCK OUT®<br />
(AARS in 2000), the genetics of<br />
the KNOCK OUT® family has been<br />
definitively a further step towards<br />
zero spray target of roses and easycare,<br />
two major expectations of<br />
the end-consumer<br />
DRIFT ® - The next big<br />
thing for small gardens!<br />
The prototype for the DRIFT® series<br />
was first sent for a test in 1992.<br />
At that time, the idea was certainly<br />
right. However, with patience, being<br />
one of the most needed virtues<br />
in rose hybridising, and selection,<br />
the efforts continued for years after<br />
that.<br />
Finally, by 2008 a full set of five<br />
varieties were introduced, showing<br />
the characteristics the market was<br />
looking for: toughness, pest and<br />
disease tolerance and winter hardiness<br />
combined with a suitable size<br />
and repeat-blooming nature.<br />
The low, spreading habit of DRIFT®<br />
does correspond perfectly to the<br />
latest use of the rose by “modern<br />
and new” consumers who have<br />
no time, and less space available<br />
compare to their parents. DRIFT® is<br />
now one of the latest breakthrough<br />
innovation colonising terraces and<br />
small urban gardens.<br />
Timing is everything<br />
Over the past 40 years,<br />
MEIDILAND®, KNOCK OUT®<br />
and DRIFT® are illustrating at<br />
Meilland garden roses (Photo credits: Meilland).<br />
MEILLAND a long term process<br />
in the plant business, looking for<br />
innovations and making them<br />
available according to the markets<br />
needs and requirements.<br />
Of course all the research and<br />
development activities could not<br />
happen without being supported by<br />
the relevant Intellectual Property<br />
tools and related strategies wherever<br />
needed and possible.<br />
Having said that, breeding, imagination<br />
and long-term vision are<br />
the necessary ingredients for<br />
constructing our future. |||<br />
About the author<br />
Bruno Etavard has been active in the<br />
field of plant breeding since 1982. In<br />
1988 he joined Meilland International,<br />
the world leading company in rose<br />
breeding, as a License Manager.<br />
Bruno Etavard has been the member<br />
of IRBA, the International Rose<br />
Breeder Association, since 1988. He<br />
joined the Board of <strong>CIOPORA</strong> in 2010.<br />
He is also a vice-chair of the Crop<br />
Section Cut Rose (IRBA).<br />
<strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong> | www.FloraCulture.eu 39
Intellectual Property<br />
It has long been<br />
felt that the<br />
Australian PBR<br />
regime, although<br />
comprehensive<br />
in legislation,<br />
is impractical<br />
for effective<br />
enforcement by<br />
being too restrictive<br />
and expensive for<br />
most of the PBR<br />
holders in the<br />
ornamental sector.<br />
Enforcement reform: an<br />
The Australian Government<br />
has recognised this concern<br />
from the industry and the<br />
decision was made to review in a<br />
broad and strategic way, the role<br />
of intellectual property and its<br />
contribution to the development of<br />
Australian Industry and charged<br />
the Advisory Council on Intellectual<br />
Property (ACIP) with the<br />
responsibility to fulfil this objective.<br />
Significant developments<br />
It was recognised that significant<br />
developments are occurring at both<br />
a national and an international level<br />
in plant variety development and<br />
exploitation, which have increased<br />
the importance of Plant Breeders’<br />
Rights and their enforcement. The<br />
goal was to review the effectiveness<br />
of Australian PBR enforcement.<br />
ACIP, an independent body that<br />
advises the appropriate Australian<br />
Federal Government Minister<br />
on intellectual property matters,<br />
was tasked to enquire, report and<br />
make recommendations to the<br />
Australian Government on issues<br />
related to the enforcement of Plant<br />
Breeders’ Rights in Australia and<br />
consider possible strategies to<br />
assist Australian PBR holders to<br />
effectively enforce valid rights. It<br />
Accepted<br />
by Chris Prescott<br />
There were a total of 23 recommendations<br />
submitted by ACIP<br />
and the Australian Government<br />
issued the Government’s response<br />
in June 2011 with 15 recommendations<br />
accepted, four accepted<br />
in principle and four rejected.<br />
The following is a brief outline of<br />
the recommendations that were<br />
accepted:<br />
• The PBR Act to be amended to<br />
clarify that harvested material,<br />
that is also propagating material,<br />
is to be considered as such<br />
material even if it is not being<br />
used for that purpose.<br />
• As part of IP Australia’s education<br />
and awareness programs, raise<br />
industry awareness of the opportunity<br />
to have specific taxa<br />
excluded from the farmer’s<br />
privilege exemption.<br />
• Encourage PBR owners to clarify<br />
to growers the conditions of sale<br />
of propagating material and their<br />
obligations in relation to future<br />
generations of it.<br />
• Enable EDV declarations to be<br />
made in respect of any variety.<br />
Currently an EDV declaration<br />
can only be made in respect to<br />
a protected variety<br />
• Retain responsibility for EDV<br />
declarations with the PBRO<br />
(Plant Breeder’s Rights Office)<br />
and ensure the PBRO has the<br />
ability to assess such applications.<br />
This may involve the Plant<br />
Breeder’s Rights Advisory<br />
Committee (PBRAC).<br />
• The jurisdiction of the second tier<br />
of the Federal Court of Australia<br />
to include PBR matters.<br />
This would dramatically reduce<br />
the legal costs of enforcing an<br />
infringement through the courts.<br />
The recommendation was that<br />
some disputes can be handled<br />
in the Federal Circuit Court at<br />
a lower cost and also making it<br />
easier for litigants to use this court<br />
in each Australian state rather<br />
than only in Canberra. It would<br />
also make it easier to obtain court<br />
orders from a judge in issues<br />
relating to customs seizures etc.<br />
This recommendation had been<br />
presented in the lower house of<br />
Parliament in 2013, however due<br />
to the federal election it was never<br />
ratified in the Senate.<br />
• IP Australia facilitates ADR<br />
(Alternative Dispute Resolution)<br />
for parties in dispute by establishing,<br />
maintaining and making<br />
publicly available basic information<br />
on the ADR options for PBR<br />
owners and a register of ADR<br />
service providers with PBR and<br />
plant breeding experience.<br />
ACIP is currently considering<br />
the establishment of an IP dispute<br />
resolution centre. The centre<br />
envisaged by ACIP would provide<br />
mediation, appraisal, validity and<br />
infringement opinion services,<br />
delivered by experts drawn from<br />
a panel on a case-by-case basis.<br />
• Introduce exemplary damages<br />
provisions for PBR: currently,<br />
when the court finds an infringer<br />
guilty, the title holder is only able<br />
to claim lost profits. In the case of<br />
most ornamental infringements<br />
this means that, even though the<br />
right holder has won the case,<br />
the expense of bringing such an<br />
action has left him out of pocket.<br />
With exemplary damages the<br />
court can issue a verdict that<br />
forces the infringer to pay beyond<br />
the lost profits.<br />
• IP Australia focuses its PBR<br />
educational and awareness efforts<br />
on the tertiary sector.<br />
• No changes to be made to<br />
extended rights.<br />
• No changes to be made to s. 17<br />
(conditioning and use of farm<br />
saved seed) in relation to asexual<br />
propagation at this time. Asexual<br />
propagation by plant nurseries<br />
is an exercise of the exclusive<br />
right and is not exempted from<br />
infringement by s.17.<br />
• No changes to be made to<br />
exhaustion of PBR and clarify in<br />
the PBR Act that the mere sale<br />
of propagating material G0 for<br />
purposes of growing and selling<br />
G1 does not necessarily imply a<br />
licence to purchase crop G1.<br />
• No changes to be made to the<br />
pre-grant enforcement provisions.<br />
• The Government takes no action<br />
either in establishing an industry<br />
peak body or collecting agency,<br />
or in relation to the development<br />
of standard contracts and licence<br />
agreements at this time.<br />
40 www.FloraCulture.eu | <strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong>
Australian story<br />
was not a general review of the PBR<br />
legislation, but more precisely it was<br />
a review established to identify difficulties<br />
in enforcement and recommend<br />
solutions to these difficulties<br />
where appropriate.<br />
Although I am not completely<br />
satisfied with all the outcomes of<br />
this review, and there are many<br />
areas that require further reform,<br />
I do, however, feel that ACIP has<br />
Accepted in principle<br />
The following is an outline of the<br />
recommendations accepted in<br />
principle:<br />
• There will be no change to the<br />
operation of farmer’s privilege.<br />
The Government indicated that it<br />
can work with the plant breeding<br />
industry and achieve the recommended<br />
result by better explaining<br />
the operation of section<br />
17 in education and awareness<br />
campaigns.<br />
• An on-going Expert Panel to be<br />
established to provide guidance<br />
and opinions on general issues or<br />
specific cases concerning the<br />
PBR Act and related law. The<br />
Government noted that PBRAC<br />
already has the powers to investigate<br />
technical matters and administrative<br />
matters arising under the<br />
recommended to Government a<br />
well-defined road map that will<br />
assist breeders in the future by<br />
not only protecting their varieties,<br />
but more importantly - making it<br />
more efficient and cost effective to<br />
enforce their IP rights in Australia.<br />
The full ACIP report, as well as the<br />
Government response, is available<br />
online at http://www.acip.gov.au/<br />
reviews/all-reviews/reviewenforcement-pbr/<br />
|||<br />
PBR Act, once these matters have<br />
been referred to the PBRAC by<br />
the Registrar.<br />
• IP Australia to liaise with the<br />
Australian Federal Police (AFP)<br />
and Commonwealth Director<br />
of Public Prosecutions (CDPP)<br />
with a view to increase the<br />
number of investigations and<br />
prosecutions of the PBR infringement<br />
cases.<br />
• Introduce an Information Notice<br />
System into the PBR Act based<br />
on the UK Information Notice<br />
system. IP Australia is to investigate<br />
the feasibility of developing a<br />
cost-effective Information Notice<br />
System to enable PBR owners to<br />
obtain information on the source<br />
of plant material from suspected<br />
infringers.<br />
IP’s central office in Canberra (Photo credits: IP Australia).<br />
Not accepted<br />
• A new “purchase” right to be added to s. 11 (general nature<br />
of PBR). Had this recommendation been accepted it would<br />
have provided the ability for an ‘End Point Royalty’ to be<br />
charged at place of purchase similarly to the pay-by-scan that<br />
is used in the USA.<br />
• Amendment to s. 4 (c) (definition of Essentially Derived<br />
Varieties) by replacing the test for important features with a<br />
test for essential characteristics. This recommendation would<br />
have brought Australia and <strong>CIOPORA</strong>’s positions on EDV<br />
and Minimum Distance closer together.<br />
• Introduction into the PBR Act of the PBR seizure powers<br />
for customs. The rejection of this recommendation places<br />
Australia at odds with other developed nations and makes<br />
global Plant Variety Protection problematic. It is greatly<br />
advisable for a market economy such as Australia, to have the<br />
ability to stop counterfeit material from entering the country<br />
with the use of customs. The rejection doesn’t mean a court<br />
order can’t be obtained to stop infringing product, but adds<br />
an additional step and is counter to the desired reform of<br />
enforcement.<br />
• Protection against mendacious variety declarations.<br />
Photo credits: IP Australia<br />
About the author<br />
Chris Prescott has 30 years of experience in the cut rose industry,<br />
24 of which as the managing director of his own enterprise, Prescott<br />
Roses Pty Ltd. In the course of his carrier he taught commercial rose<br />
growing at Swinburne University and since 1994 he has been working as<br />
Qualified Person (QP) in the Australian PBR Scheme. Chris’ involvement<br />
with Grandiflora, where he is dealing with variety selection and IP<br />
strategies, began in 2004. He is currently in his second term as a member<br />
representing plant breeders at PBRAC (Plant Breeders Rights Advisory<br />
Committee), a committee that advises the Federal Minister for Industry<br />
on issues related to the PBR scheme at IP Australia.<br />
<strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong> | www.FloraCulture.eu 41
PBR enforcement<br />
Against any act of<br />
infringement an IP<br />
title holder with<br />
rights valid on the<br />
territory of Italy<br />
may choose several<br />
ways to enforce his<br />
rights, including<br />
challenging the<br />
alleged infringers<br />
before a criminal<br />
prosecutor.<br />
by Nicola Novaro<br />
Different Italian routes<br />
against counterfeiters<br />
According to the Italian laws,<br />
criminal offences against<br />
the owners of IP titles are<br />
regulated by Articles 473, 474 and<br />
517 of the Penal Code, which were<br />
strengthened by Law 99/2009.<br />
Different penalties<br />
The said provisions foresee different<br />
penalties for various types of<br />
infringements, such as:<br />
• imprisonment for a minimum<br />
term of six months to a<br />
maximum of three years, plus<br />
a monetary fine of a minimum<br />
of €2,500 up to a maximum of<br />
€25,000, in case of infringement<br />
of a registered trademark; or<br />
• imprisonment for a minimum<br />
term of one to a maximum of<br />
four years, plus a monetary fine<br />
of a minimum of €3,500 to a<br />
maximum of €35,000, for the<br />
infringement of patents, designs<br />
or models; or<br />
• imprisonment for a maximum<br />
term of two years, plus a fine of<br />
up to a maximum of €20,000,<br />
for the import, coming into<br />
possession for commercial purposes,<br />
sale or circulation of goods<br />
bearing counterfeit or altered<br />
marks or distinctive signs, or the<br />
violation of other IP rights.<br />
The latter provision may apply to<br />
infringements of Plant Breeders’<br />
Rights.<br />
Law 99/2009 qualifies specific<br />
circumstances of the crime with additional<br />
imprisonment terms from<br />
two to a maximum of six years,<br />
when the illicit acts are involved, for<br />
instance, in cases with substantial<br />
quantities of counterfeit goods or if<br />
the illegal actions are committed<br />
repeatedly and bear signs of an<br />
organised criminal offence.<br />
Administrative sanctions<br />
Additionally, some acts call upon administrative<br />
sanctions to be applied<br />
by administrative bodies, such as<br />
seizure of the counterfeit goods and<br />
Seized tomato plants (Photo credits: AIB).<br />
their disposal within three months<br />
of seizure in case of an evident<br />
infringement of registered marks,<br />
designs and models, or systematic<br />
and willful counterfeiting of other<br />
IP rights (i.e. Illegal propagation).<br />
In case of IP infringement, the<br />
police is responsible for carrying<br />
out the investigation, including<br />
recording of the calls and undertaking<br />
the seizures, which must be<br />
confirmed by a competent court and<br />
may be subject to re-examination.<br />
In addition, further laws contain<br />
other provisions that might be<br />
applicable in cases of IP rights<br />
infringement, such as the administrative<br />
responsibility requirement<br />
(Law 231/2001), stating that<br />
organisations may be held liable for<br />
certain crimes of fraud, committed<br />
or attempted, by members of senior<br />
management and by those working<br />
under the direction or supervision<br />
of thereof. This provision includes<br />
the infringement of Intellectual<br />
Property rights.<br />
Various strategies<br />
worthwhile<br />
A short overview of the Italian<br />
criminal law presented above<br />
already demonstrates that in some<br />
cases it is worth thinking about<br />
various strategies for combating<br />
illegal propagation.<br />
In Italy, it is quite common and frequent<br />
to initiate legal action against<br />
any counterfeiter using the instruments<br />
of civil litigation. However,<br />
it is widely known that the Italian<br />
civil justice can be unsatisfactory in<br />
terms of positive verdicts on merit<br />
cases (although the preliminary<br />
injunctions can be granted quite<br />
swiftly). Even in the case of a positive<br />
outcome for the IP holder, with<br />
awarded damages to be paid by the<br />
infringer, it might be a real nightmare<br />
to collect all the amounts due.<br />
In some cases, however, it might be<br />
necessary to choose the civil path<br />
for various reasons (consumer defence,<br />
legal market, etc.). Over the<br />
course of several years, I have been<br />
advising clients to utilise a number<br />
of alternative tools, such as the instruments<br />
of criminal law, in their<br />
fight against illegal propagation.<br />
On the basis of serious evidence<br />
of infringement, our clients were<br />
advised to report the infringers of<br />
their Plant Breeders’ Rights with<br />
complete information about place,<br />
42 www.FloraCulture.eu | <strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong>
address, names of the farm proprietors,<br />
plant varieties involved, results<br />
of genotypical or phenotypical<br />
tests and so on, that can be useful<br />
information for the enforcement<br />
agencies.<br />
Before the release of denouncement<br />
letters, we had to identify the public<br />
authority for the launch of the antiinfringement<br />
action. Although several<br />
law enforcement bodies could<br />
have become involved, we decided<br />
that the Anti-Fraud Service at the<br />
Ministry of Agriculture (ICQRF)<br />
was the most suitable organisation<br />
due to the technical issues involved<br />
in the investigation process.<br />
Illegal tomato<br />
young plants<br />
The first denouncements were made<br />
against tomato growers suspected of<br />
the illegal propagation of protected<br />
varieties. In the first case in Salerno<br />
province, the results were quite<br />
positive, as ICQRF responded<br />
promptly, and only three days later<br />
two inspectors, guided by an exparte<br />
technical advisor, visited the<br />
facilities.<br />
Some 9,000 young plants were<br />
discovered, and the grower admitted<br />
that these plants had been<br />
vegetatively propagated from a<br />
protected variety. From the analysis<br />
of the plant material found on the<br />
premises of the farm, it became<br />
clear that the seized young plants<br />
constituted only a small part of a<br />
much larger propagation activity,<br />
since the inspection took place at<br />
the very end of the season.<br />
As no plant passport could be<br />
presented for the original plant<br />
material on the basis of which the<br />
vegetative propagation had been<br />
carried out, the following day the<br />
inspectors examined the facilities of<br />
the plant raiser who had supplied<br />
the original material to the grower.<br />
At the moment this case is pending<br />
before the competent Public Prosecutor,<br />
and the alleged infringer runs<br />
a serious risk of being sentenced to<br />
imprisonment and a fine penalty by<br />
a local Court.<br />
A further outcome of this action<br />
was, that the young plants were<br />
seized and even when the lawyer<br />
of the defendant tried to contest<br />
the seizure order, the judge kept<br />
it in force, which resulted in the<br />
perishing of the plants. The investigation<br />
carried out by the Public<br />
Prosecutor in charge was completed,<br />
and we shall soon proceed with<br />
the civil part of the proceedings and<br />
claim damages for the violation of<br />
the Plant Breeders’ Right.<br />
The inspection also led to a<br />
discovery of information on<br />
infringements of other PBRs: on<br />
the basis of the discovered evidence<br />
I filed a formal denunciation<br />
against the involved grower directly<br />
to the Public Prosecutor.<br />
This claim is now pending before<br />
the Public Prosecutor, and we are<br />
monitoring the case and providing<br />
the prosecution with further<br />
documents and information that<br />
we gathered later on, to build up<br />
enough evidence for the initiation<br />
of a criminal case. A press release<br />
about this action, prepared in<br />
co-operation with the ICQRF, was<br />
circulated widely and picked up by<br />
the major industry magazines and<br />
websites.<br />
Lettuce<br />
A second denunciation was made in<br />
the Lazio region. Already a couple<br />
of days after the complaint, ICQRF<br />
inspected a grower and confiscated<br />
some young plants for variety<br />
identification run by the Variety<br />
Registration Office (CRA-SCS).<br />
We are confident that in this case a<br />
criminal case can also soon be initiated<br />
against the alleged infringer.<br />
A third case deals with an infringement<br />
in lettuce. It was discovered<br />
after a variety identification test,<br />
conducted by AIB (Anti-Infringement<br />
Bureau) on suspected varieties<br />
from the market, had confirmed a<br />
match with the protected lettuce<br />
varieties. Based on the results of the<br />
AIB tests, we lodged a denouncement<br />
at ICQRF against a seed<br />
distributor in the Naples region.<br />
In the following week, ICQRF<br />
took action and, accompanied by<br />
our representative, inspected the<br />
premises of the distributor. The<br />
suspected seeds were found and<br />
sampled, and the identification<br />
test of the seed samples is on its<br />
way.<br />
Illegally propagated tomato young plants at the nursery<br />
(Photo credits: AIB).<br />
Partnerships<br />
Further cases are on-going and<br />
we hope to get positive results in<br />
our fight against the infringers.<br />
After these achievements, the AIB<br />
represented by the Breeders Trust,<br />
one of AIB’s sister associations<br />
dealing with infringements in<br />
grasses and seed potatoes, decided<br />
to enter into a formal cooperation<br />
agreement with the ICQRF. It is<br />
expected that a co-operation protocol,<br />
which includes the technical<br />
training of the ICQRF inspectors,<br />
the exchange of information, and<br />
other joint activities, will soon enter<br />
into force.<br />
In conclusion, I would like to<br />
emphasise that the partnerships between<br />
public and private sectors are<br />
absolutely necessary for the effective<br />
battle against the illegal propagation.<br />
Especially, as it becomes more<br />
and more evident that the PBR<br />
infringements harm not only the<br />
title-holders (breeders), but also the<br />
public institutions. |||<br />
About the author<br />
Nicola Novaro obtained his Law Degree in 1996 from the University of<br />
Pavia. In 2000, he became a lawyer after enrolling at the Law Society of<br />
Imperia. During the same year he participated in a Master on Intellectual<br />
Property Rights organised by the IP Centre in Verona. Nicola currently<br />
works as a legal advisor for the worldwide rose breeder NIRP International,<br />
where he handles all IP rights issues. He also acts on behalf of<br />
other companies for trademark, Plant Variety Rights and industrial design<br />
filings before national, regional and international offices.<br />
<strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong> | www.FloraCulture.eu 43
Ecuador<br />
Over the past two<br />
years, Ecuador has<br />
seen a dramatic<br />
increase in PBR<br />
and regulatory<br />
change regarding<br />
IP procedures,<br />
jeopardising the<br />
competitiveness<br />
of the Ecuadorian<br />
flower industry as a<br />
whole. The Ciopora<br />
<strong>Chronicle</strong> reports.<br />
by Dean Rule<br />
Changes are in the works<br />
The snow-capped Cayambe<br />
mountain in the Ecuadorian<br />
Andes has a unique feature.<br />
No other place on the equator has<br />
snow twelve months a year. Farms<br />
producing what many consider the<br />
best quality greenhouse roses in the<br />
world are located on the high altitude<br />
plateaus at a little over 3000<br />
meters above sea level and in the<br />
valley below at about 2.850 meters<br />
above sea level.<br />
From limited production areas in<br />
the 1980s, the rose growing area<br />
in Ecuador has expanded to over<br />
2,500 hectares and expanded out to<br />
farms near the Colombian border<br />
in the north and near Cuenca<br />
in southern Ecuador. Superior<br />
growing conditions combined with<br />
excellent management have and<br />
continue to make Ecuadorian<br />
flowers world renowned.<br />
Newly proposed law<br />
An Intellectual Property Law<br />
passed by the Ecuadorian Congress<br />
and signed by the President in 1998<br />
was implemented in 1999. It gave<br />
the breeders the tools to combat<br />
piracy, offered the growers protection<br />
from unfair competition and<br />
was a key factor leading to the tremendous<br />
growth in the Ecuadorian<br />
production of roses, Gypsophila,<br />
Hypericum and other flowers.<br />
Ecuador is now seven years into a<br />
government that has the slogans<br />
‘Citizens’ Revolution’ and ‘Socialism<br />
for the 21 st Century’. The<br />
Constitution and many basic laws<br />
have been changed.<br />
One proposal is to replace the<br />
Intellectual Property Law with the<br />
Organic Code of Social Economy<br />
of Knowledge and Innovation<br />
(COES). This new law is to change<br />
the legal nature of Intellectual<br />
Property rights into a code, where<br />
increasing what is available in the<br />
public domain is an objective in a<br />
push for creative activities and social<br />
innovation. Key changes proposed<br />
include taking away possible penal<br />
sentences for certain violations of<br />
the Intellectual Property Law.<br />
Superior growing conditions combined with excellent management have and<br />
continue to make Ecuadorian flowers world renowned.<br />
Restrictive policies<br />
In recent years, Ecuador has lagged<br />
far behind its neighbouring countries,<br />
Colombia and Peru. It failed<br />
to attract foreign investment due to<br />
several issues including: problems<br />
with the legal system; lack of trade<br />
agreements that favour production<br />
in Ecuador and exporting to countries<br />
in North America and Europe,<br />
expropriations of foreign owned<br />
investments with varying levels of<br />
compensation and other restrictive<br />
policies.<br />
At the same time, one of the objectives<br />
of the government is to change<br />
the country’s production and export<br />
emphasis from commodities to<br />
value added products. Ecuador is an<br />
OPEC nation, with petroleum as its<br />
largest export, followed by bananas,<br />
flowers, shrimp, coffee and cocoa.<br />
Nevertheless, many do not seem to<br />
understand that a bouquet of flowers<br />
is already a value added product,<br />
bringing in far more income and<br />
providing more employment per<br />
hectare than any other significant<br />
agricultural crop in the country.<br />
Misguided thoughts<br />
A group of small growers with<br />
connections to certain individuals<br />
within the government blamed<br />
their struggles on the cost of royalties.<br />
Some within the government<br />
had the misguided thought that<br />
over 30% of the income of the<br />
farms would be paid as royalties,<br />
when in reality the average is<br />
probably 3-4%. Some government<br />
officials clearly indicated their<br />
intention to make breeders abandon<br />
certain variety registrations, so<br />
that the varieties would pass to the<br />
public domain within Ecuador, and<br />
even stated erroneously that if the<br />
variety was in the public domain<br />
in Ecuador then exports from the<br />
country could not be controlled in<br />
other countries. In response, one of<br />
the changes implemented in 2013<br />
under the current Intellectual<br />
Property Law was the raising of<br />
the fees to register and protect<br />
the genetics of a plant variety to a<br />
total of almost $170,000 over the<br />
twenty year period that the variety<br />
can be protected. The sliding scale<br />
44 www.FloraCulture.eu | <strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong>
increases each year to reach levels<br />
unmatched in any other country<br />
in the world. The initial effect<br />
was three-fold. Many breeders<br />
abandoned protection of some<br />
older varieties in Ecuador and also<br />
greatly restricted the introductions<br />
of new varieties into the country.<br />
Also, actions have been taken in<br />
the European Union showing that<br />
even where Ecuadorian government<br />
officials fail to provide the legal<br />
protection within the country those<br />
actions can be taken in key export<br />
markets.<br />
High wage rates<br />
Ecuador has one of the highest<br />
wage rates of any flower exporting<br />
country. With many growing areas<br />
being in the high altitude tropics,<br />
many farms are spending nearly<br />
60% of their income on labour<br />
costs. High freight rates compared<br />
to their natural competitor and<br />
neighbour, Colombia, have long<br />
affected their position in the more<br />
price competitive segments of the<br />
market.<br />
Labour laws that create long term<br />
obligation for farms also complicate<br />
the competitive position, and many<br />
growers are struggling to survive or<br />
sell out to farms that are better capitalised<br />
and structured to face the<br />
competitive pressures. At the same<br />
time, over 70% of the growing area<br />
is represented by Expoflores, the<br />
Ecuadorian floriculture association.<br />
The Association shares the<br />
position of the breeders (many are<br />
also members of the Association) as<br />
to the importance of proper variety<br />
protection and the damage that<br />
would be caused for all parties if<br />
varieties passed prematurely to the<br />
public domain.<br />
One of the stated objectives of the<br />
Ecuadorian government is to push<br />
breeders to move their operations<br />
to Ecuador and to encourage local<br />
companies to breed varieties to<br />
replace those coming from other<br />
countries. Discounts on a sliding<br />
scale for <strong>2014</strong> are the following:<br />
1. 10% for having a showroom to<br />
display roses that are completely<br />
selected outside the country.<br />
2. 20% for presenting a request for<br />
registration of summer flowers.<br />
Fees of this level make most<br />
summer flowers uncompetitive<br />
compared with other growing<br />
areas in the world.<br />
3. 70% for doing both selections<br />
from codes and final approval of<br />
varieties within Ecuador.<br />
4. 90% for breeding and selecting<br />
the varieties within Ecuador.<br />
Discrimination<br />
in fee levels<br />
Most rose breeders have long been<br />
doing selection from codes and<br />
introduction of varieties within<br />
Ecuador and are eligible for the<br />
70% discount. However, the<br />
discrimination in fee levels is<br />
considered by many a violation<br />
of the TRIPS agreements under<br />
the World Trade Organization to<br />
which Ecuador belongs. With the<br />
implementation of the discount<br />
structure, breeders will be more<br />
inclined to introduce and register<br />
new varieties in Ecuador, and some<br />
additional breeders may implement<br />
breeding programs in the country.<br />
Potential conflicts<br />
The Ecuadorian government is<br />
in the process of negotiations of a<br />
trade and cooperation agreement<br />
with the European Union. The<br />
negotiators for Europe are very<br />
aware of the potential conflicts<br />
between internationally accepted<br />
norms of Intellectual Property<br />
Protection and the current status<br />
of protection within Ecuador.<br />
The highest authorities in Ecuador<br />
may need to decide between the<br />
alternatives of signing a trade agreement<br />
with the European Union or<br />
making major changes to the Intellectual<br />
Property Law, as the new<br />
draft law does not meet European<br />
standards of protection.<br />
The new proposed law, COES,<br />
includes some significant changes<br />
from the current law. The protection<br />
period for most flowers will be<br />
reduced from 20 to 15 years. It may<br />
restrict the registration of natural,<br />
spontaneous mutations based on<br />
the interpretation of clauses in<br />
the law. Use of wild species in the<br />
breeding is restricted. For protection<br />
to apply between the application<br />
for a variety and the granting<br />
Ecuador’s<br />
floriculture is<br />
represented at<br />
major European<br />
floricultural and<br />
horticultural trade<br />
fairs. Here: at<br />
the IFTF 2013 in<br />
Vijfhuizen<br />
(Photo credits:<br />
Anna Kaehne).<br />
of Plant Breeders’ Rights, the possible infringers<br />
must be notified that the registration process is<br />
underway. The door may be left open for “traditional<br />
community farming” of the variety.<br />
Royalties<br />
One of the key areas the Ecuadorian government<br />
wanted to change is the royalties and protection<br />
of certain medications in order to weaken the<br />
position of the large multinational pharmaceutical<br />
companies in changing high prices for certain<br />
proprietary products. One way this has been<br />
approached is the pushing of generic, locally<br />
manufactured medications and the provision of<br />
declaring the free availability of medication for<br />
reasons of public interest, including epidemics.<br />
The draft of the new law includes the provision<br />
that a variety can be forced to become freely<br />
available or mandatory licensing by executive<br />
decree or ministerial resolution upon reasons of<br />
public interest, emergency or national security,<br />
none of which should apply to flower exports.<br />
Restricting access to new varieties<br />
Changes in fees have already affected the Ecuadorian<br />
flowers industry by restricting access to<br />
those varieties important for growers and buyers<br />
serving niche markets. The legal honest growers<br />
that are complying with all their legal obligations<br />
with the Ecuadorian government are forced into a<br />
complicated, uncompetitive position against small<br />
growers or the few illegal larger growers that are<br />
often not completing their obligations in other<br />
areas. Ultimately, the losers will be the consumers<br />
who would otherwise benefit from a greater<br />
supply of premium quality flowers that come from<br />
Ecuador. |||<br />
About the author<br />
Dean Rule is a general manager at Conectiflor SA in Quito, Ecuador and agent<br />
for E. G. Hill Company Inc., Jan Spek Rozen BV and Terra Nigra BV, involved in<br />
breeding, selecting and introducing to the market greenhouse roses.<br />
<strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong> | www.FloraCulture.eu 45
Intellectual Property<br />
The availability<br />
of new varieties<br />
is very important<br />
for society, but<br />
also for breeders,<br />
growers and<br />
farmers. Just think<br />
of new varieties with<br />
disease resistance,<br />
herbicide resistance,<br />
drought resistance,<br />
the ability to<br />
withstand lower<br />
temperatures, salt<br />
tolerance and the<br />
ability to grow<br />
with less fertilizer.<br />
The International<br />
Association of<br />
Horticultural<br />
Producers (AIPH),<br />
representing<br />
ornamental growers<br />
worldwide, shares<br />
this interest with<br />
plant breeders and<br />
this forms the basis<br />
for consultation<br />
with <strong>CIOPORA</strong><br />
and other relevant<br />
organisations.<br />
by Mia Buma<br />
Growers’ perspective on the<br />
role of effective IP protection<br />
The aim of the AIPH standing<br />
Committee for Novelty<br />
Protection is to communicate<br />
the views of growers in relation<br />
to plant novelty protection and<br />
Plant Variety Rights (PVR). AIPH<br />
endorses the UPOV system and is<br />
of the opinion that the system plays<br />
a positive role in the development<br />
of the sector and the relationships<br />
between breeders, propagators,<br />
growers and traders. AIPH is<br />
encouraging countries to accelerate<br />
the implementation of a PBR<br />
system and to bring their legislation<br />
in line with the Act 1991 of the<br />
UPOV Convention. AIPH pleads for<br />
strong and balanced PBR that helps<br />
breeders to act in protection of their<br />
rights and supports growers who<br />
legally use protected varieties.<br />
What kind of right is<br />
Plant Breeders Right<br />
(PBR) exactly?<br />
AIPH believes that the system of<br />
Intellectual Property (IP) protection,<br />
to which PBR belongs,<br />
benefits the progress of mankind<br />
and society. The goal of PBR is to<br />
stimulate plant breeding by means<br />
of an IP system, which ensures that<br />
we (society) accept that certain<br />
entrepreneurs can gain a monopoly<br />
for certain products, for a certain<br />
period of time and under strict<br />
conditions. This matters because it<br />
is important to society to stimulate<br />
intellectual and economic activities<br />
that contribute to technical and<br />
intellectual progress. This in turn<br />
supplies essential and useful<br />
products to society. It holds for<br />
plant breeders as well as all inventors<br />
and creators, including the<br />
holders of patents, designs, etc.<br />
An IP right is an abstract right.<br />
This is the fundamental basic<br />
principle of all IP systems. It means<br />
that a PBR is not a right on a plant,<br />
but it is a product of the mind, an<br />
attainment of the spirit. An abstract<br />
right means that it does not rest<br />
on something tangible like the<br />
ownership of a house – something<br />
you can see and feel – because the<br />
subject of its protection is an idea,<br />
which occurs in the human brain.<br />
It is the Eureka moment! The IPR is<br />
also an absolute right, which means<br />
a right you can exercise against<br />
everyone.<br />
Furthermore, a breeder acquires<br />
a monopoly in the form of a PBR,<br />
but under rather strict conditions.<br />
For example, under the breeders’<br />
exemption PBR only extends to<br />
harvested material if the breeder<br />
had no reasonable opportunity<br />
to exercise his right on propagating<br />
material (Art. 14.3 of UPOV).<br />
Because society benefits from innovation<br />
and technical and cultural<br />
progress, the monopoly makes<br />
an exception to the rules of competition<br />
and the free market forces<br />
that normally apply.<br />
Why are PBRs<br />
so important for<br />
the industry?<br />
When you understand the fundamental<br />
principles of the IP system,<br />
you will see that a PBR is not a sole<br />
right of breeders, but a right of the<br />
society. This means it concerns all<br />
parties involved, including breeders,<br />
growers, producers, traders and<br />
even consumers. Therefore, a PBR<br />
has to be exercised and enforced in<br />
balance with the interests of all the<br />
parties involved.<br />
In short, PBR is not a right that<br />
serves only breeders’ interests,<br />
although sometimes this is mistakenly<br />
assumed by some breeders and<br />
their lawyers and it is clear that the<br />
use of PBR to control the market<br />
should be prevented. The provision<br />
that requires sufficient availability<br />
of the propagating material of protected<br />
varieties at reasonable terms<br />
is important, as is the compulsory<br />
license provision in international<br />
treaties and national laws. Both<br />
provisions aim to prevent absolute<br />
market control. In some national<br />
PBR legislations these provisions are<br />
included (e.g. The Canadian Plant<br />
Breeders’ Rights Act 1990).<br />
Innovation and product renewal<br />
are the basis for progress in the<br />
ornamental sector. Therefore plant<br />
breeding and an effective PBR system<br />
are fundamentally important.<br />
Society in general, and growers<br />
in particular, are interested in the<br />
development of new varieties, and<br />
so AIPH pleads for a strong and<br />
balanced PBR system, which<br />
endorses fair competition. It is<br />
important for growers and farmers<br />
that they are supplied with the<br />
demanded amount of propagating<br />
material at the right time and at a<br />
reasonable (and equally available)<br />
price to ensure fair competition.<br />
What are the key<br />
issues since the<br />
introduction of PBR?<br />
The question about the minimum<br />
distance between varieties has<br />
always been on the list of challenges<br />
for the PBR system. What does<br />
and what does not fall within the<br />
scope of granted PBR, or: when is a<br />
new variety sufficiently distinctive<br />
(innovative) to be granted a PBR?<br />
The issue of Essentially Derived<br />
Varieties (EDV) and the discovery<br />
of a mutant, for which PBR may be<br />
granted, are examples of this issue.<br />
Furthermore, we have to bear in<br />
mind that the question about minimum<br />
distance has to be answered<br />
in light of the legal basis of the PBR<br />
system (the benefit of society!). It<br />
means that the distance between<br />
certain varieties with a very limited<br />
assortment, such as vegetable<br />
varieties (cucumbers, tomatoes and<br />
lettuce), can be smaller than in<br />
trees, bulbs or other crops that are<br />
more time-consuming to breed.<br />
Otherwise, it would be impossible<br />
to obtain PBR titles for varieties<br />
with a limited assortment and this<br />
would stop, rather than stimulate,<br />
46 www.FloraCulture.eu | <strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong>
the breeding of these crops.<br />
For example, if a breeder, after a<br />
25-year long process of breeding<br />
resulting in one good new commercial<br />
apple variety, is granted a PBR,<br />
it is not fair if a competing breeder,<br />
who only adds a slightly or insignificant<br />
charateristic, is granted a PBR<br />
as strong as the first breeder.<br />
In short, the minimum distance<br />
each new variety should fulfil, will<br />
have to be determined individually<br />
on the basis of important variety<br />
characteristics (main characteristics).<br />
The establishment of common<br />
guidelines in this regard has been<br />
agreed at diplomatic conferences to<br />
UPOV 1991, but unfortunately it<br />
has not been completed by UPOV.<br />
In years preceding the Act of 1991,<br />
UPOV was busy formulating the<br />
main characteristics for 10 to 12<br />
important varieties with the goal of<br />
helping to decide if the criteria for<br />
distinctness had been reached.<br />
In October 2013, at the UPOV<br />
seminar on EDV in Geneva,<br />
AIPH once again urged UPOV to<br />
complete these guidelines.<br />
The importance<br />
of PBR for growers<br />
of ornamental crops<br />
The availability of new varieties<br />
is important, for society and for<br />
the industry. It is also vital for<br />
breeders, propagators, growers and<br />
farmers that there is a common<br />
understanding about what a variety<br />
is and when a new variety exists.<br />
Based on this, all parties involved<br />
have to find common ground on<br />
issues such as minimum distances,<br />
EDV and mutants. If we solve these<br />
issues, the current EDV rule, which<br />
has been deemed unworkable,<br />
can be removed from the UPOV<br />
treaty and national PBR laws. If we<br />
succeed in making proper arrangements<br />
concerning the minimum<br />
distance between varieties, the<br />
impractical EDV provision would<br />
become unnecessary.<br />
It is important for growers and<br />
farmers that they are supplied with<br />
sufficient propagating material<br />
in time and at a reasonable price.<br />
However, these issues are sometimes<br />
not easy to discuss with<br />
breeders. It is in everyone's interest<br />
that new varieties are launched and<br />
introduced carefully to avoid unnecessary<br />
underselling and market<br />
disruptions.<br />
From the past we can learn how<br />
in a very short time market shares<br />
can shift and change with the<br />
introduction of new varieties. For<br />
example: Van der Have owned<br />
80% of the world market for grain<br />
in the 1980s. Now Van der Have,<br />
although having since merged<br />
with another firm, only own 10%.<br />
Similarly, Hazera and Danielle<br />
controlled 80% of the world tomato<br />
market in the 1990s. Today, having<br />
also undergone a merger and now<br />
under the name of Vilmorain, they<br />
own only 20%.<br />
This is an important point on<br />
which AIPH also tries to get agreement<br />
with the breeders and on<br />
which the industry could come to<br />
accordance if all involved parties<br />
admitted that the introduction of<br />
new varieties to the market has to<br />
be done restrictively and cautiously.<br />
In that case the market control on<br />
the basis of PBR can be prevented.<br />
Here lies a basic necessity of consultations<br />
between all involved parties<br />
and their associations.<br />
Final remarks<br />
It is clear, from the growers point<br />
of view, that PBR is of social<br />
The representatives<br />
of AIPH and<br />
<strong>CIOPORA</strong> met<br />
during the IFTF<br />
2013 in Vijfhuizen,<br />
the Netherlands,<br />
engaging in a<br />
fruitful discussion<br />
on the role of<br />
PBR for breeders<br />
and growers<br />
(Photo credits:<br />
<strong>CIOPORA</strong>).<br />
importance in general and of commercial<br />
importance for growers in<br />
particular. A good working PBR<br />
system is important for product<br />
differentiation that can provide a<br />
marketing advantage for growers.<br />
AIPH is working on an internal<br />
program with the aim to enhance<br />
the awareness of PBR among its<br />
members and to stimulate growers’<br />
engagement with the subject.<br />
Subsequently, the members will<br />
be able to improve their lobbying<br />
of their respective national governments<br />
on PBR related topics. AIPH<br />
also plans further engagement with<br />
the World Intellectual Property<br />
Organisation (WIPO), the<br />
Agreement on Trade Related<br />
Aspects of Intellectual Property<br />
Rights (TRIPS) and the World<br />
Trade Organisation (WTO). These<br />
organisations have historically not<br />
been involved with ornamental<br />
horticulture; it is time to change<br />
this. |||<br />
About the author<br />
Mia Buma is the Secretary of the Committee for Novelty Protection,<br />
AIPH. In spring 2008, she started her own consultancy bureau, Mia<br />
Buma Advies. Mia is now working freelance for (among others) the Dutch<br />
flower auction FloraHolland, the Dutch Association of Wholesale Trade in<br />
Horticultural Products (VGB) and the International Association of Horticultural<br />
Producers (AIPH). In addition, Mia became increasingly involved<br />
in Plant Variety Protection (PVR) and its relation with other Intellectual<br />
Property rights. She also specializes in arbitration law. With regard to<br />
PVR, Mia is internationally active as Secretary of the Committee for<br />
Novelty Protection for the AIPH. In this capacity she keeps abreast with<br />
all the developments within the PVR field and within UPOV, where she<br />
represents AIPH in its observer status.<br />
<strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong> | www.FloraCulture.eu 47
AGM<br />
The Dutch city of<br />
The Hague was<br />
host to Ciopora’s<br />
AGM <strong>2014</strong> and not<br />
without reason.<br />
As well as being<br />
the political centre<br />
of the Netherlands,<br />
The Hague is also<br />
an international<br />
city of law, peace<br />
and justice. Ideally<br />
located, with<br />
easy access to<br />
motorways, airports<br />
and public transport<br />
and not far from the<br />
Netherland’s most<br />
famous horticultural<br />
region, Westland,<br />
the Hague was the<br />
perfect venue to<br />
forge new plans,<br />
exchange ideas and<br />
research findings<br />
and to adopt<br />
Ciopora’s Position<br />
Papers on IP.<br />
Productive IP debate<br />
in realm of flowers<br />
Discussion on Minimum Distance in the trial station of Naktuinbouw during the business excursion <strong>2014</strong> in Roelofarendsveen.<br />
by Anna Kaehne<br />
Democracy comes first<br />
This year’s motto for the AGM<br />
‘Speak up, be heard!’ invited attendees<br />
to participate in a series of<br />
communication activities undertaken<br />
by <strong>CIOPORA</strong> in preparation to<br />
the AGM <strong>2014</strong>. Whether frequent<br />
updates for the members in form<br />
of circular letters, discussions,<br />
feedback collection, surveys or open<br />
vote – <strong>CIOPORA</strong> employed all the<br />
available tools of open communication<br />
and democratic participation in<br />
order to update and adopt the new<br />
<strong>CIOPORA</strong>’s Position Papers on IP.<br />
Intensive debates<br />
At the IP Workshops dedicated to<br />
this task during the AGM <strong>2014</strong>,<br />
open microphones were quickly<br />
making their way through the<br />
meeting rooms as the members of<br />
<strong>CIOPORA</strong> engaged in intensive<br />
debates on matters as Minimum<br />
Distance, EDV, Patents, Groundbreaking<br />
innovation, Breeders’<br />
Exemption and further important<br />
PBR-related topics. On April 2,<br />
during the general discussion, the<br />
members further deliberated on the<br />
drafts of Position Papers presented<br />
to them over the course of the past<br />
months and voted for their adoption.<br />
As a result of the productive<br />
discussion four Position Papers,<br />
on Minimum Distance, Scope of<br />
the Rights, Breeder’s Exemption,<br />
and Exhaustion, were adopted<br />
unanimously. The next step for<br />
the association is to continue the<br />
discussions and the collection of<br />
feedback on the remaining four<br />
papers in preparation for their<br />
adoption at the AGM in Tel-Aviv<br />
from March 23-26, 2015 (see the<br />
interview with Mr. Andrea Mansuino<br />
& Dr. Edgar Krieger on page<br />
26 for a detailed discussion of the<br />
adopted papers).<br />
Although the AGM in The Hague<br />
was well-attended, <strong>CIOPORA</strong> hopes<br />
to engage even more of its members<br />
in the decision-making process in<br />
Israel next year.<br />
Every vote counts<br />
‘Representation’ was the key word<br />
of the opening AGM speech by<br />
Andrea Mansuino, the President of<br />
<strong>CIOPORA</strong>. Reflecting on his first<br />
presidency term, Mr. Mansuino<br />
underlined that over the past three<br />
years the efforts of the <strong>CIOPORA</strong><br />
Board were focused on strengthening<br />
the representative character<br />
of <strong>CIOPORA</strong> and achieving of a<br />
solid unity among breeders in their<br />
positions on the crucial questions<br />
of IP protection for plants. Further<br />
on, the members were invited to<br />
cast their votes for President and<br />
Board Candidates, which, with the<br />
vast majority of votes, resulted in<br />
the second term for Mr. Mansuino<br />
and the election of two new Board<br />
members: Mrs. Wendy Cashmore<br />
(Plant & Food Research, New Zealand)<br />
and Mr. Andreas Kientzler<br />
48 www.FloraCulture.eu | <strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong>
(Innovaplant, Germany). With<br />
the newly elected members, the<br />
<strong>CIOPORA</strong> Board further enhanced<br />
its geographic representation and<br />
professional expertise. A farewell<br />
and gratitude were expressed to<br />
Mr. Focco Prins, who left the<br />
Board after three years of active<br />
service. Personnel changes were<br />
also reported by the Crop Section<br />
Fruit, who elected Mrs. An van den<br />
Putte (Better3Fruit, Belgium) as its<br />
new Chairwoman and thanked the<br />
founding Chair Mrs. Dominique<br />
Thévenon for her enormous contribution<br />
to the work of the Section.<br />
All hands on deck<br />
The hard work at the day-time<br />
meetings was rewarded by the<br />
AGM Dinner on board the historic<br />
transatlantic ship ss Rotterdam.<br />
The members and special guests<br />
were invited to relax and network<br />
while enjoying a spectacular sunset<br />
on the Maas.<br />
Fresh fodder for the<br />
brain - IP from beyond<br />
our own backyard<br />
Sometimes a brief glance from<br />
outside of one’s box can serve as a<br />
productive source of inspiration.<br />
The main motivation for <strong>CIOPORA</strong><br />
to organize the Open Part of its<br />
AGM was to provide the members<br />
and guests with insights into the<br />
IP practices “beyond their own<br />
backyard”. This year the Open Part<br />
touched upon two “close” and one<br />
external topic: the specifics of the<br />
application of the Nagoya protocol<br />
Left to right: Mr. Bart Kiewiet (Vondst Advocaten, past President<br />
of CPVO), Mr. Antonio Villarroel (<strong>CIOPORA</strong> Board, Geslive) and<br />
Mr. Martin Ekvad (President of CPVO) on board ss Rotterdam.<br />
<strong>CIOPORA</strong> unites breeders from all parts of the world: (left to right) Mr. Burgert van Dyk (Sapo Trust, South Africa),<br />
Mrs. Wendy Cashmore (Plant & Food Research New Zealand) and Dr. Jan de Riek (<strong>CIOPORA</strong> Board, ILVO, Belgium).<br />
by Mrs. Anke van den Hurk<br />
(Plantum), the management of an<br />
impressive IP portfolio in the sector<br />
of consumer electronics by Mr. Jan<br />
de Visser (Philips) and the benefits<br />
of FRAND-licensing by Mr. Leo<br />
Melchers (Syngenta).<br />
“Driving Dutchman” -<br />
Fruit & Ornamental tours<br />
On April 3, at 6 a.m., the early<br />
<strong>CIOPORA</strong> birds boarded the<br />
buses to explore a number of very<br />
interesting locations in the regions<br />
of Aalsmeer and Wageningen. The<br />
business excursion ornamentals<br />
went on a tour through all the<br />
parts of floricultural supply chain,<br />
including the freight forwarder<br />
IPHandlers, the flower auction<br />
FloraHolland and the floral<br />
wholesaler Waterdrinker, whereas<br />
the fruit-interested colleagues<br />
could see and taste the delicious<br />
creations by the strawberry breeder<br />
Fresh Forward and for a brief<br />
moment revisit campus life at<br />
the Wageningen University &<br />
Research Center Plant Breeding.<br />
In the afternoon both groups<br />
rejoined at Naktuinbouw, where<br />
they were warmly welcomed by<br />
the General Manager Mr. John<br />
van Ruiter and his colleagues.<br />
<strong>CIOPORA</strong> would like to express<br />
its gratitude to all the hosts of the<br />
business tour <strong>2014</strong>, which without a<br />
doubt became one of the highlights<br />
of the <strong>CIOPORA</strong> events <strong>2014</strong>.<br />
Left to right: Sheryl and Anthony Tesselaar (Australia)<br />
and Peter Ilsink (Interplant Roses BV), past President of<br />
<strong>CIOPORA</strong>.<br />
For more details visit www.ciopora.org<br />
and follow <strong>CIOPORA</strong> on LinkedIn.org<br />
and Facebook for the latest news on<br />
IP protection for plant innovations and<br />
updates regarding the <strong>CIOPORA</strong> AGM<br />
2015 in Tel-Aviv. |||<br />
About the author<br />
Anna Kaehne is a Manager Public Relations &<br />
Communications at <strong>CIOPORA</strong>. She is responsible<br />
for the association’s internal and external<br />
communications including the relations with press,<br />
production of media and marketing materials offline<br />
as well as online. She is the person behind the<br />
<strong>CIOPORA</strong> <strong>Chronicle</strong>, association’s newsletter, press<br />
releases, website and other communication projects.<br />
Anna holds a Magister Degree in English and<br />
Slavic Studies from the University of Magdeburg,<br />
Germany. In her homeland – Ukraine – she studied<br />
Inter national Law at the National Law Academy of<br />
Ukraine in Kharkov.<br />
<strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong> | www.FloraCulture.eu 49
<strong>CIOPORA</strong> Members<br />
La Villetta Srl<br />
PROCOVAMI<br />
ROYON CONSULT<br />
Royal Berries S.L.<br />
SUNNY GRONNEGYDEN ApS<br />
advocaten<br />
Ciopora Suppporters<br />
How to become a supporter? You are a natural<br />
person or company prepared to support and<br />
foster the objectives, purposes and policy of the<br />
association, but do not fulfil the requirements<br />
for membership in <strong>CIOPORA</strong>? Please contact<br />
<strong>CIOPORA</strong> at the address as featured on this<br />
page. <strong>CIOPORA</strong>’s current Supporters are:<br />
Agri Information Partners, Distel Software,<br />
Hawita Gruppe, Family Tree Farms, FloraCulture<br />
International, André Briant and Nevado Roses.<br />
For further information about<br />
<strong>CIOPORA</strong> please contact the<br />
administrative office in Hamburg.<br />
<strong>CIOPORA</strong><br />
P.O. Box 13 05 06<br />
D-20105 HAMBURG, GERMANY<br />
T (49) 40 555 63 702<br />
F (49) 40 555 63 703<br />
www.ciopora.org<br />
info@ciopora.org<br />
50 www.FloraCulture.eu | <strong>CIOPORA</strong> <strong>Chronicle</strong> June <strong>2014</strong>
The <strong>CIOPORA</strong><br />
<strong>Chronicle</strong> is a<br />
special edition<br />
of <strong>CIOPORA</strong><br />
and the monthly<br />
business magazine<br />
on worldwide<br />
floriculture<br />
FloraCulture<br />
International.<br />
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Editor-in-chief: Ron van der Ploeg (ron@floracultureinternational.com)<br />
Editor: Anna Kaehne (anna.kaehne@ciopora.org)<br />
With the kind assistance of Dr. Edgar Krieger (edgar.krieger@ciopora.org)<br />
Contributing writers: Tim Briercliffe, Mia Buma, Herman de Boon,<br />
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COMPANY PAGE WEBSITE<br />
<strong>CIOPORA</strong> .......................................................................6, 50 ......................................www.ciopora.org<br />
Conard-Pyle Co. .............................................................3 .............................. www.conard-pyle.com<br />
Danziger “Dan” Flower Farm .....................................2 ......................................www.danziger.com<br />
Fides .................................................................................11 ................................................ www.fides.nl<br />
Innovaplant .....................................................................35 .........................................www.kientzler.eu<br />
IRBA (Int. Rose Breeders Ass.) .................................18 ........................................www.ciopora.org<br />
Meilland International .................................................52 .................................... www.meilland.com<br />
COMPANY PAGE WEBSITE<br />
NIRP International ........................................................25 .....................www.nirpinternational.com<br />
Pakharenko ....................................................................35 ..............................www.pakharenko.com<br />
Royalty Administration International.......................51 ..........................www.rai-worldwide.com<br />
Selecta Klemm GmbH & Co. KG ...............................32 ..............................www.slectaworld.com<br />
Vondst Advocaten .........................................................8 ................................ www.vondst-law.com<br />
Würtenberger Kunze ....................................................8 ...............................................www.wk-ip.eu<br />
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