On December 10, the Administrative Council of CPVO had adopted the revised Guidelines on variety denominations with Explanatory Notes that came into force on January 1, 2022. The updated documents aim at assisting applicants in their choice of variety denominations in compliance with Article 63 of Basic regulation 2100/94 (Basic regulation) and facilitating the assessment of variety denominations by national authorities. The Guidelines and the Explanatory Notes are available for download as a merged document, containing, along with the rules and requirements, an abundance of both suitable and not suitable variety denomination examples.
Most notable provisions
The revised Guidelines detail the application of the requirements to variety denominations set out in Articles 63(3) and 63(4) of the Basic Regulation. Article 1 explicitly states that any person who offers or disposes of to others for commercial purposes variety constituents must use the variety denomination. Additionally, for the purpose of the Guidelines, ‘variety´ is defined as ‘propagating material’ and ‘user’ as the ‘user of propagating material’, which may include both professional users and the general public.
The new Guidelines offer insights into the variety denomination assessment by the CPVO. For this purpose, CPVO may examine the meaning of the proposed variety denominations in the official EU languages and the meanings of each word in the case of other EU languages and Latin. For instance, CPVR applicants should avoid purely descriptive denominations in these languages: e.g., both ‘Primo Red’ (‘first red’) and ‘Novum’ (‘new’) would be rejected as purely descriptive. Any variety denominations that contain intentional or alternative misspellings, attached words, and elements, where the verbal elements transport any intelligible semantic content, will be assessed in the light of their meaning as well. Where a deviation in spelling does not alter the meaning, the meaning of the correct spelling will be assessed. For instance, ‘Yelow’ will be assessed as (purely descriptive) ‘Yellow’.
Impediments to the designation of variety denominations
Articles 2 to Article 8 of the new document list possible impediments to the designation of a variety denomination, offering a wide range of examples. While choosing a variety denomination, breeders should take into account such factors as a prior right of a third party, the user perspective as to denomination recognition or reproduction, the possibility of confusion with another variety denomination. Further, variety denomination should not be offensive in any Member States or misleading as to characteristics, value, or the variety identity.
Trade mark* of third party
Among prior rights of third parties, the Guideline pays special attention to trade marks as one of the “most commonly encountered” impediments to variety denominations.
According to Article 2, for a trade mark to impede on the designation of variety denomination, it must be registered in one or more Member States or at the EU level before the approval of the variety denomination, have identical or similar linguistic expression, and refer to identical or similar goods. However, the Guideline clearly states that the burden of objection lies with the trade mark holder.
A CPVR applicant will be only be notified by the CPVO Office if his denomination proposal is identical to a European trade mark filed for Class 31 and the species to which the variety belongs is identical or included in the list of goods for which the trade mark is registered. The EUIPO EU trade mark database serves as a source for the identification of such cases.
In a rare case, where CPVO is made aware of a potential conflict between an existing trade mark and a denomination proposal by another source and this information is not the result of a formal objection or an appeal by a trade mark holder, CPVO will notify applicant without taking a formal position. It is, however, up to the applicant to either follow up with the trade mark holder or accept the risk of a possible objection.
The trade mark holder can provide a written waiver of their rights.
While there is no impediment to the use by the holder of his own trade mark as a variety denomination (or its part), it may lead to revocation of the trade mark, given that the variety denomination is deemed to be generic.
Please refer to CIOPORA’s summary of the revised Guidelines and Explanatory Notes for more information on possible impediments and assessment of variety denominations by the CPVO:
* "Trade mark" - the original two-word spelling from the CPVO documents.
** Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of June 15, 1957, as revised at Stockholm on July 14, 1967, and at Geneva on May 13, 1977, and amended on September 28, 1979.