By Judith de Roos and Charlotte Plasman.-
Most of CIOPORA’s members are quite familiar with plant breeders’ rights (PBR) for the protection of their varieties, but in many countries there is also the variety registration process to take care of. These are two separate procedures, as a PBR does not automatically grant the right to commercialize a variety within that territory[1].
To commercialize your fruit variety, most countries require a registration in the so-called National Catalogue or National List. This is a register which contains all varieties which have been approved by the local authorities, and are therefore allowed to be put on the market in that territory. But in what scenarios is such a registration required, how does someone get their variety on this register and when can you commercialize your variety?
Registration on the National Catalogue required, or maybe not?
As mentioned above, when you want to commercialize the propagating material of your variety in a certain country it might have to be registered on the National Catalogue. We want to emphasize the wording ‘commercialize’, because generally speaking if you want to send plant material for example for testing purposes, such a registration is not yet necessary. Next to that, it’s important to note that in most countries a National Catalogue registration is only required for edible species such as agricultural, vegetable and fruit species. Normally there is no registration requirement for ornamental varieties. But as there is no international agreement for ‘seed legislation’ (in comparison to the UPOV Convention for PBR’s) the requirements vary per country. Seed laws, next to variety identity by means of registration, deal with the quality requirements of seeds and plant propagating material. The rationale behind variety registration is a safeguard for the buyer (e.g. the grower) that the identity of the plant material is true to type. Use of the correct variety denomination is therefore also obliged. Although registration is in principle needed for the act of commercialization, it can be required already at the stage of import into a country if the import is with the aim of commercialization. Furthermore, because of the fact that variety identification is part of quality control (certification) it can be required to have a DUS report when starting plant production within a certification scheme e.g. in Europe.
There are countries which do not require a specific variety registration if you have filed a PBR application (e.g. EU, Egypt, Switzerland), or do not have a National Catalogue system at all (United States, the United Arab Emirates). Nonetheless, it’s possible that there are certain import requirements. These are not discussed in this article.
One should be aware that even if a country has a National Catalogue system in place, it might not be applicable for a specific fruit species. For example South Africa, which requires a registration in case of strawberries but not for blueberries.
Requirements for registration on the National Catalogue – DUS and/or VCU testing?
First of all, you need to file an application through a local contact, such as a representative, subsidiary or commercial partner. The general requirements are in most countries an application form, technical questionnaire, description of the variety and photographs. In addition to this, the candidate variety must be tested on several characteristics. In some countries the testing can be conducted under supervision of the applicant, in other countries official DUS-testing (same as for PBR) is required and in some countries even VCU examination is needed, depending on the country and species. VCU stands for ‘Value for Cultivation, Use and Sustainability’ and tests the performance of the variety under the local conditions. For this reason VCU-data can in principle not be taken over from another country.
In the EU there are special regimes for vines (including table grapes) and fruits. In both cases, the principle rule is that registration in one EU Member State allows marketing of the variety in the whole of the EU. The EU manages both a fruit (Frumatis) and vines variety register that are in fact compilations of all the different national registers.
For fruit species, official DUS-testing is required for registration. However, a fruit variety is automatically added to the Frumatis database (the EU register for fruit varieties) when filing a PBR application either at the CPVO or in one of the EU Member States, after which the variety may be marketed.
For vines (including table grapes), the EU legislation prescribes the characteristics on which a new variety should at least be tested by the national authorities, which include next to DUS also VCU-like characteristics. The specific testing requirements are defined on Member State level.
Most countries require local DUS testing, for which plant material must be sent to the country of interest. This local testing can either be done by the local authorities, such as in Kazakhstan, Tunisia and Zambia, or at the nursery of the applicant (or their partner), like in Morocco. In case of the latter, the applicant must compose a report with the testing results. Based on this report, the variety in question is either approved or refused for the National Catalogue.
In some countries, such as Ukraine, there’s no local DUS examination conducted. Instead, it’s possible to use results from a trial which has already been conducted outside Ukraine by the applicant on their or their partner’s nursery.
Others like Serbia and North Macedonia require a DUS examination, for which the CPVO DUS report can be used.
Please note that there are countries which require VCU testing, in addition or instead of the DUS examination. Morocco is a country where VCU is required for fruit species (in addition to DUS).
In general, when it’s required to send plant material to the local authorities, it should be sent to one location. However, in e.g. Kazakhstan plants must be sent to several locations. The amount of and which locations depends on in which Kazakh regions you want your variety registered in the National Catalogue.
Not all countries have experience with the registration of fruit species and therefore have no protocols or testing facilities in place. Especially in several African countries in which seed systems are under development the procedures for field crops, with extensive VCU testing, are often taken as example. Procedures can therefore be cumbersome and expensive. It is our opinion that involvement from breeders organizations is needed to explain that for fruit (and vegetable) species VCU testing should not be required. Furthermore, the uptake of fruit species in regional registration systems such as Comesa, SADC and Ecowas would be interesting, as this would allow commercialization in the whole region after one or two national registrations.
In the EU the European Commission is reviewing the complete set of Seed Marketing Directives and intends to propose the plans for new legislation spring 2023. The revision, among others, aims to incorporate the EU wide objectives of the Green Deal and Farm to Fork strategy to make agriculture more sustainable. As there is a belief that with VCU testing the development and introduction of more sustainable varieties is stimulated, there is certainly the risk that the Commission will introduce VCU-requirements for market introduction possibly also in fruits and/or ornamentals. It’s also an opportunity to shift the regime of table grapes to that of the other fruit species. So also here active involvement of breeder organizations (including CIOPORA) seems required.
Starting commercialization
So, you have filed an application. But when can you start commercializing your variety? In general, this is only allowed after your variety has been approved and registered in the National Catalogue. This means that, depending on the species, the amount of cycles the examination takes and finalisation of the procedure, it can take years before you can sell your variety on the market in a certain country. Please note that in the EU fruit varieties can be marketed as from the moment of filing the application, but beware that as long as there is no DUS-report and thus no PBR title there is only provisional protection.
Before commercialization is allowed, normally small amounts of plant material can be send for testing purposes as long as the ownership remains fully with the breeder.
Connection with IP protection
A question we get often is if there’s a connection with IP protection of plant varieties, i.e. PBR. The short answer is: yes and no. Both are based upon identification of the variety and normally a DUS report for PBR can also be used for registration. But a registration on the National Catalogue does not offer any kind of IP protection for your variety, and has nothing to do with (IP) property. Such a registration only allows that a specific variety can be put on the market in a certain territory. Therefore the applicant for a National Catalogue registration does not have to be the same as the breeder of that variety, but he needs to be able to maintain the variety true to type.
This also means that when a variety is approved and registered, any party can commercialize that variety in that particular country. Only if the variety is protected by a PBR, the consent of the PBR holder to do so is required. After all, only a PBR gives the exclusive right to the holder to sell or market a variety[2].
If you want to have IP protection for a variety you want to market, you should also thus file a separate PBR application.
Conclusion
So to sum up the above: in many countries a National Catalogue registration is required to commercialize the propagating material of an edible variety, such as fruit. The procedure is often similar to the application for PBR, but in some countries additional VCU-testing is required. As the testing may take several years it is important to start in time in order to be ready when you want to start commercialization.