Feb 6, 2024

EU board nixes Pink Lady licensed varieties’ validity

An EU legal battle could place the legitimacy of the plant breeding rights (PBR) of the Pink Lady licensed Cripps Pink and Cripps Red/ Sundowner varieties into question.

On Jan. 12, a European plant variety rights system board ruled in favor of an Australian company holding PBR rights on a mutation of Cripps Pink.

The European Board of Appeal of the Community Plant Variety Office ruled that evidence put forward by Teak Enterprise Pty’s Barnsby/PLBAR B1, a mutation that enjoys independent plant breeding rights (PBR) in many jurisdictions,  “was able to demonstrate the unrestricted distribution of the cultivar to nurseries and growers by WAAA (Western Australian Agriculture Authority) even under the Pink Lady and Sundowner names in Australia prior to the novelty bar date set by EU PBR Law.”

The information was included in a news release from Property Variety Management, based in Yakima, Washington.

The long-awaited decision involved a dispute concerning the novelty of the Pink Lady-licensed Cripps Pink and Cripps Red/Sundowner varieties. A decision dismissing a 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 release citing the board’s decision.

“The Department in Australia never sought IP rights on Dr. John Cripps’ achievement. This is a well-known story in Australia,” Geoff Godley, Teak’s president, said in the release. “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 John Cripps reporting details of the circumstances surrounding the dissemination of the varietal constituents to Australian commercial nurseries and growers.” Cripps died in May 2022.

Before Teak, the validity of the EU Cripps Pink was also challenged by Lynnell Brandt, Pink Lady America’s president and owner of the Pink Lady trademarks in the U.S. and Mexico. 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.  But this time, the evidence put forward by Teak, which also challenged the Cripps Red/SUNDOWNER variety, could not be ignored or treated as it was in the earlier case,” according to the release.

The board of appeal’s decision is subject to appeal before the General Court. “It will certainly have significant impact given the retroactive effects of the declarations of invalidity, and it shall also set a precedent in future proceedings and Novelty assessments by the CPVO,” according to the release.

The Board of Appeal decision in respect to the Cripps Pink/PINK LADY and Cripps Red/SUNDOWNER varieties may be accessed here. Other legal proceedings involving Wild Pink trademark oppositions are being considered by the European Union Intellectual Property Office, according to the release.

The CPVO is a EU agency responsible for the management of the Community Plant Variety Rights System. Based in Angers, France, the CPVO has been operational since April 1995.