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Farming and horticulture are a significant part of New Zealand economy. Plant variety rights directly tie into this area, allowing the commercialisation of new plant varieties in industries such as: 

  • vegetable production;
  • fruit and ornamental growth;
  • pastoral farming;
  • gardening industries; or
  • arable farming.

Intellectual property is a business asset that you should protect and maintain like any other asset. As a form of intellectual property, plant variety rights have legal protections that you can apply for to protect your business. This article will explain how plant variety rights function in New Zealand and how you can protect this form of intellectual property.

What Are Plant Variety Rights?

Intellectual property rights are a legal term that describes your exclusive rights to an idea, which also applies to plant varieties. To develop a plant variety, you identify desirable genetic traits of an existing plant and cultivate a new strain according to your intentions. You can gain exclusive intellectual property rights over this new plant variety, which you call “plant variety rights”. Having a plant variety right means that you have the exclusive right to:

  • produce that plant variety for sale; and
  • sell its propagating material, such as spores, seeds, or cuttings.

In other words, if you gain a plant variety right for vegetatively propagated fruit, vegetables, or ornamental varieties, you have the exclusive right to produce for sale their harvestable:

  • fruit;
  • vegetables;
  • flowers; and
  • alternative varieties.

You can legally pursue people who attempt to produce or sell any propagating material of your plant variety without your permission. In some cases, this protection may also extend to harvestable material. If you desire, you are the only entity that can commercialise cultivating your plant variety, lasting from 20-23 years. You can license your plant variety rights and gain royalties from those licences as well.

Note that “variety” does not refer to botanical variety. Instead, it means “cultivar” or “cultivated variety”. Thus, you intentionally cultivate a plant variety.

Exceptions to Plant Variety Rights

 Plant variety rights are a way to profit from cultivating new plant varieties. However, there are some exceptions to this exclusive right, namely:

  • those who grow your plant variety for non-commercial purposes, such as in their private garden;
  • use of your plant variety to create a hybrid and produce a new variety; and
  • selling propagative material of your plant variety for nonreproductive purposes, such as pumpkin seeds for eating.

How Can I Protect My New Plant Variety?

Plant variety rights protect your plant variety, preventing sale or production without your authorisation. To get plant variety rights, you need to apply for this intellectual property right with the Intellectual Property Office of New Zealand (IPONZ). They will consider your application and test your plant variety to determine its suitability. 

However, when you apply, you need to ensure your plant variety meets various requirements. IPONZ will only grant you plant variety rights if you meet the following requirements.

 

Your plant variety must be:

Description

New

You have not sold your plant variety in New Zealand for more than one year before you apply. For overseas sales, you cannot have sold for more than four or six years, depending on the kind of plant.

Distinct

Your plant variety has characteristics distinguishable from other known varieties, such as its colouring or disease resistance.

Uniform

There is little variance between plants of a particular generation.

Stable

Successive generations keep the distinct characteristics of your original plant variety.

Your plant variety also needs to have a name that complies with IPONZ regulations.

For example, your plant variety name should not mislead your customers about the nature of your plant.

Applying for Plant Variety Rights

You can apply for plant variety rights through IPONZ’s website or a paper form. When you do, you need to provide:

  • evidence of ownership (such as being the breeder or developer) or authorisation as the plant variety owner’s agent;
  • a completed technical questionnaire applying to your particular plant variety;
  • a digital colour photo of your plant variety;
  • seed samples; and
  • a germination test certificate.

You will also need to pay the relevant fees for this particular intellectual property right. These will vary depending on your plant variety type, ranging from $500 to $3200.

You need to apply for plant variety rights with plenty of time to spare, as the verification process can range from two to five years, or even longer in some cases. IPONZ needs to grow and test your plant variety to ensure it meets its requirements. These trials vary depending on the time of year and season, so you will need to find out what time of year you can apply for your particular plant variety type.

Key Takeaways

If you cultivate new plant varieties, you can protect them with plant variety rights. You then have the exclusive right to produce this variety for sale and sell its propagating material. You can legally pursue anyone that does this without your authorisation. If you would like more information or help with protecting your plant variety rights, contact LegalVision’s intellectual property lawyers on 0800 005 570 or fill out the form on this page.

Frequently Asked Questions

What is a plant variety?

A plant variety for intellectual property purposes does not refer to botanical variety. Instead, it is a cultivated variety, meaning you dedicate time and effort to grow and cultivate it.

What are the requirements for plant variety rights?

Any plant variety for a plant variety right needs to be new. This means you can only have sold it for a year or less in New Zealand, or less than 4-6 years overseas. It also needs to be distinct, new, and stable.

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