Community Plant Variety Office Issues Long-Awaited Decision; Geoff Godley Comments

Tuesday, Feb. 6th, 2024

by Anne Allen

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FRANCE - News recently broke in connection to the dispute concerning the novelty of Cripps Pink and Cripps Red apple varieties. On January 12, the Board of Appeal of the Community Plant Variety Office (CPVO) issued its long-awaited decision, finding that the decision dismissing the petition lacked "detail and clarity" and was "not in line with the legal principles of good administration, legal certainty, and the requirement to state the reasons."

According to the Board, the evidence put forward by Teak Enterprise PTY was able to demonstrate the unrestricted distribution of the cultivar to nurseries and growers by WAAA (Western Australian Agriculture Authority, now DPIRD) even under the PINK LADY and SUNDOWNER names in Australia prior to the Novelty bar date set by EU PBR Law, a press release stated.

On January 12, the Board of Appeal of the Community Plant Variety Office issued its long-awaited decision concerning the novelty of Cripps Pink and Cripps Red apple varieties

Teak Enterprise PTY is an Australian company holding PBR rights on Barnsby/PLBAR B1, a mutation of Cripps Pink enjoying independent PBR rights in many jurisdictions, including Australia.

“The Department in Australia never sought IP rights on Dr. John Cripps’ achievement,” Geoff Godley, President of Teak Enterprise PTY, elaborated. “This is a well-known story in Australia.”

Indeed, Teak was able to collect a great deal of evidence, including official documentation accessed from WAAA’s archives, and an oath declaration signed in 2015 by the legendary Dr. John Cripps (Dr. Cripps passed away in May 2022), reporting details of the circumstances surrounding the dissemination of the varietal constituents to Australian commercial nurseries and growers.

The Community Plant Variety Office noted that the petition lacked "detail and clarity" and was "not in line with the legal principles of good administration, legal certainty, and the requirement to state the reasons"

The validity of the EU Cripps Pink was also challenged by Mr. Lynnell Brandt, the owner of the PINK LADY® trademarks in the United States and Mexico, and President of Pink Lady America. That case was dismissed by final Judgments of EU Courts, which did not find any convincing evidence of WAAA’s awareness or consent to the commercial exploitation of the varieties by the Australian fruit industry.

The BoA decision, which also ordered the CPVO to pay all costs and fees of the proceedings, is still subject to appeal before the General Court.

The Board of Appeal decision in regard to the Cripps Pink/PINK LADY and Cripps Red/SUNDOWNER varieties may be accessed here.

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