Plant variety denominations
What is a plant variety denomination?
A plant variety denomination is the most precise term for a plant in biological systematics. The variety denomination indicates a subgroup of a species. For example, "aroma" and "discovery" are two varieties of the species "apple".
The variety denomination has an entirely separate function and cannot be used as a trademark at the same time.
When is this relevant in trademark cases?
This is relevant when the list of goods concerns goods of the same or a closely related species.
Example:
Is it possible to register the trademark DISCOVERY for "trees", "fresh fruit", "fresh vegetables", "potatoes" and "apples"?
- It cannot be registered for "trees", "fresh fruit" and "apples" because discovery is a variety denomination for apple.
- However, because neither "potatoes" nor "fresh vegetables" are apples or closely related to apples, the trademark can be registered for these goods.
See Section 15 first paragraph litra e of the Trademarks Act. This provision entered the Trademarks Act on 1 March 2023.
Which variety denominations are relevant?
This applies to variety denominations for plant varieties with plant breeders' rights in Norway and in states that are members of UPOV (The International Union for the Protection of New Varieties of Plants).
New
From 1 March 2023, the Norwegian Industrial Property Office will check the database of the CPVO (Community Plant Variety Office) - Variety Finder, in order to find relevant variety denominations, when processing a trademark application to check whether it can be registered.
Rules that still apply
A variety denomination can also describe different goods. For example, we cannot accept the trademark DISCOVERY for apple jelly or apple juice because it only describes which apple variety the jelly and juice are made from.
(See Section 14 of the Trademarks Act.)
A variety denomination can also be deceptive for specific goods. If the item is "apple juice of the type aroma", the trademark DISCOVERY could be misleading. The consumer may then think that the juice is of the "discovery" variety. In such cases, the Norwegian Industrial Property Office cannot register the trademark.
(See Trademarks Act section 15 first paragraph letter b.)
Although this is not new, the Norwegian Industrial Property Office may refuse to register trademarks due to variety denominations, more often than before. The new examination process will probably make us more aware of relevant plant variety denominations that we were unable to catch previously.