Breeders' rights protect new plant varieties. Such rights are assigned for a variety, not for a species, for example, apples are a species and Jonagold is a variety
Breeders’ rights arise if a variety is distinct, uniform, stable and new. The variety must also have a name.
What do the rights entail?
Breeders’ rights give owners the exclusive right to cultivate and trade in a new plant variety. The owner can also condition the variety for propagation, export, import, or storage for one of these purposes. In Belgium, an annual amount must be paid to maintain breeders' rights. This is not the case in the Netherlands.
Under certain circumstances, the owner of a plant variety can also apply to have a registered trademark cancelled. Similarly, BOIP may also refuse a trademark application on the ground that it is pre-dated by a plant variety.
How long are breeders' rights valid?
Breeders’ rights are valid for a maximum of 25 years. There is an exception to this rule in Belgium for vines, trees and potatoes, where protection is valid for a maximum of 30 years. In the Netherlands, there is an exception for vines, trees, potatoes and bulb crops, which are also protected for a maximum of 30 years.
Did you know that...?
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A variety name may not be similar to an existing trademark name.
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Both natural persons and legal persons can apply for breeders’ rights.
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If an employee develops a new variety as part of their job, the employer is entitled to the rights, unless stated otherwise in the employment contract.
Is my variety distinct?
Your variety must be clearly distinct from every other variety that is commonly known to exist as at the date the application is filed.
Is my variety uniform?
Your variety is uniform if plants of that variety are sufficiently similar to each other and have the same characteristics.
Is my variety stable?
Your variety is stable if it retains its characteristics after repeated propagation.
Is my variety new?
Your variety is new if no propagating or harvested material of the variety has yet been made available to third parties, by you or with your authorisation, with a view to using the variety commercially. There is, however, a period of grace that varies from one to six years. The length of the grace period depends on the variety for which an application for breeders’ rights has been made, where the application is made, and where the variety is already being sold.
How do breeders' rights arise?
Breeders' rights are created by registering for them.
Breeders' rights in the Benelux
Belgium
More information about breeders' rights in Belgium is available on the FPS Economy, Intellectual Property Department website.
The Netherlands
More information about breeders' rights in the Netherlands is available on the Board for Plant Varieties website.
Luxembourg
More information about breeders' rights in Luxembourg is available on the UPOV website.
Would you like some advice?
BOIP is an independent body. This means we can only provide you with information, and not personal advice. An external IP professional can advise you on the best way to protect your breeders' rights.