How does a plant breeder's right protect my plant name?
A Plant Breeder's Right (PBR) protects both the name of the plant variety (officially called the 'denomination') and an optional synonym of a plant variety (if required). A synonym is an additional name you can use to commercialise the variety in Australia.
Rules for naming a plant variety
Variety names and synonyms need to comply with the Plant Breeder's Rights Act 1994 (Section 27) as well as the International Code of Nomenclature for Cultivated Plants 2016.
The rules outline that the name must:
Before you name your variety, you need to make sure your proposed name is unique. Check that there are no other similar variety names in your denomination class (such as roses or prunus) that it could be confused with when it's written or pronounced.
For example, you can't use the name Roma for tomatoes as it's already taken, or Romer, Roamer or Romma as they sound too similar to Roma.
You'll also need to make sure your variety name isn't already registered as a trade mark. You can't use a name that's been:
- Registered as a trade mark with respect to live plants, plant cells and plant tissues (Class 31)
- Included as part of a trade mark in Class 31
- Used as an existing trade mark or included in a pending trade mark application.
If your name is a single word, make sure that the word isn't the same as that of a genus, whether in botanical Latin or in a modern language.
Erica, Daphne, Iris and Veronica happen to be Latin names of genera and aren't permitted as cultivar names, even though they're personal names as well. Similarly, Rose and Violet are common names of the genera and they too aren't permitted.
Such words may be used in a name of two or more words, but not as the final word of the name. So 'Erica Smith', 'Iris Jones' and 'Rose Queen' are acceptable names but 'Queen Rose' isn't acceptable.
The variety name shouldn't contain the botanical or common name of its genus or the common name of any species in that genus. So names like 'Rosa Christmas Rose', 'Potato Jim's Spud' and 'Primula White Cowslip' aren't acceptable.
The name shouldn't have more than ten syllables and no more than 30 characters, excluding spaces and single quotation marks.
Punctuation in a name can cause problems, so we recommend that you don't include any. In some instances, it might be acceptable to include:
- Forward slash
- Back slash
- Full stop
- A single exclamation mark.
You'll need to provide written consent if the proposed name is the name of a living person.
If the name is that of a person who died less than 10 years before the application was filed, written consent will be required from the legal representative of that person.
The same goes for names of organisations or companies -- their written consent will be required.
The name shouldn't be made up of simple descriptive words only, like 'Red', 'Giant White' or 'Small'. These can form part of a name, but don't make a name in themselves.
Certain words (or the plural forms of these words in any language) can't be used in the name. Banned words include:
The name shouldn't exaggerate the merits of the cultivar, so names like 'Best Ever', 'The Greatest' and 'Tastiest of All' aren't acceptable.
What if I haven't decided on a name yet?
If you haven't decided on a name yet, you'll need to use a temporary one in part 1 of your application.
You can change the name at any time before the final granting of a PBR however, this can delay the progression of your application.
Once you've been granted a PBR, you can only change the name under limited circumstances. This includes:
- To correct an obvious mistake
- Where the name breaches legislation.
What if a name for the variety has already been filed overseas?
The policy among UPOV (The International Union for the Protection of New Varieties of Plants) member countries is that a variety should be named the same around the world. If an application for plant protection has previously been granted overseas, the name (denomination) used in the first granted application in a UPOV member country should be the official registered name in Australia.
An exception can be made if the name is:
- Already in common use in Australia within the same denomination class
- A trade mark in Australia with respect to live plants, plant cells and plant tissues.
If you intend to market your variety under another commercial name (not the UPOV name), consider using the UPOV name as the synonym in your Australian application.
To save yourself wasted time and money and potential disappointment, wait until your proposed variety name has been accepted by us before you start using it.