On 12 January 2024, the Board of Appeal of the Community Plant Variety Office (CPVO) issued its long-awaited decision in the dispute concerning the novelty of Cripps Pink and Cripps Red apples. At the end of a complex and detailed legal analysis, the Board found 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."
Cripps Pink cv.
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 Cripps Pink name in Australia prior to the Novelty bar date set by EU PBR Law.
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.
Geoff Godley, President of Teak Enterprise PTY, elaborated: “The Department in Australia never sought IP rights on Dr. John Cripps’ achievement. This is a well-known story in Australia”. 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.
Before Teak, the validity of the EU Cripps Pink was also challenged by Lynnell Brandt, the owner of the Pink Lady® trademarks in USA 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. But this time, the evidence put forward by Teak, which also challenged the Cripps Red variety, could not be ignored or treated as it was in the earlier case.
The BoA decision, which also ordered the CPVO to pay all costs and fees of proceedings, is still subject to appeal before the General Court. In any case, 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.
Roberto Manno and his WebLegal Law Firm represented both Teak Enterprise PTY and Pink Lady America in these proceedings before the CPVO and the General Court of EU, and is also in charge of other legal proceedings in respect to the Wild Pink trademark oppositions before the EUIPO.
The Board of Appeal decision may be accessed here:
For more information:
Jill Burbery
Proprietary Variety Management
Email: [email protected]