Note:
If there is any confusion regarding the acceptability of a proposed variety
denomination (variety name), applicants are advised to contact the Plant
Breeders' Rights Office (PBRO).
For varieties of species requiring registration under the Seeds
Act, there may be additional restrictions or requirements concerning the
variety name. Applicants should consult with the Variety Registration Office of CFIA's Seed Section for
information.
General Principles
Publication and Approval
Every variety must be identified by a denomination (name) proposed by the
applicant and approved by the Commissioner. If a denomination has not been
chosen for a new variety at the time of filing the application for PBR, the application can be filed
under an experimental number or proposed denomination which can be changed any
time before rights are granted. The variety denomination shall only be approved
by the Commissioner at the time of grant of rights. Prior to the approval, the
proposed denomination of a variety must be published in the Plant Varieties
Journal, and subjected to a six-month objection period. During this time,
if there are any valid objections to the proposed denomination, the applicant
will be asked to propose a different denomination for the variety. Unless
limited by provisions under the Seeds Act, reproductive material of a
protected variety should be identified by the approved variety denomination
when advertised or offered for sale. No name, other than the approved
denomination, may be used, unless (as in the case of a marketing name) it is
used in association with the approved variety denomination.
One Variety - One Name
If a variety has been protected, or if an application for protection has
been filed, in another country, the variety denomination in Canada must be the
same as the denomination in the other country(ies). If the variety is not
protected in another country but is being marketed or is known by a particular
denomination in that country, that same denomination must be used if the
variety is protected in Canada. This is in keeping with the "one variety,
one name" policy and reflects the importance of the single denomination
for each variety worldwide. In some circumstances it may be necessary to
protect the variety under a different denomination in Canada, for instance, if
the variety denomination is found to be unacceptable here for some reason. In
that case, the denomination by which the variety is known and/or protected in
other countries is listed as a synonym. For varieties of crops requiring
registration under the Seeds Act, the registered variety name and the
denomination under which Plant Breeders' Rights are granted must be the
same.
Trademarks
The use of a variety denomination cannot be restricted by any other
designation, such as a trademark, even after the rights for the variety have
expired. Therefore, no denomination nor any part of a denomination approved for
PBR can be trademarked in
Canada. This is because the holder of the rights must ensure free use of the
variety denomination even after the rights have expired. Since trademark
protection can last indefinitely, it would not be free for use upon expiry of
the plant breeders' right.
Marketing Names
For some species, trade or marketing names (which may or may not be
trademarked) may be used in association with variety denominations for the
purpose of marketing propagating material, but only if the approved variety
denomination is easily recognizable. For example, the approved denomination of
a Petunia variety may be 'PT123' but the breeder may wish to market the
variety as Snow Flake. In this case, propagating material could be sold as
'PT123' or as 'PT123' Snow Flake. However, for varieties of
agricultural crops there are specific labelling requirements under the
Seeds Act and the use of another name in combination with the official
variety name may be prohibited. Applicants are advised to consult the Seed Section, CFIA.
Changes to a Variety Denomination
Throughout the application process, the applicant is responsible for
notifying the PBR Office
of any changes to a proposed variety denomination. Once rights have been
granted to a variety, the denomination may only be changed under very specific
circumstances:
- where, by mistake, the denomination approved was not the denomination
proposed by the applicant; or
- where additional information becomes available following grant of rights
justifying a change of denomination; such as an existing right of another
person to the use of the designation.
Variety Naming Guidelines
A denomination must conform to the guidelines outlined below. These
guidelines are based on UPOV
naming guidelines.
- The use of genus or species names, common crop names or names of botanical
types should be avoided for varieties within the same crop sectors i.e. agricultural crop sector, ornamental and forestry
crop sector, vegetable crop sector and fruit crop sector. For example, a
variety of barley named 'Rose' would be acceptable however a variety of
petunia named 'Rose' would not.
- Denominations liable to mislead and/or cause confusion should be avoided. A
denomination should be avoided that gives the impression that the variety:
- has particular characteristics it does not have; or
- is the only one with that characteristic when in fact others also have it;
or
- is derived from, or related to, another variety when this is not the case;
or
- has been bred by a certain breeder, when this is not the case.
- Denominations should not cause confusion concerning the value of the
variety by the use of comparatives or superlatives, such as 'better',
'best', 'superior', 'sweeter', etc.
- The prior rights of third persons shall not be affected by the use of a
proposed denomination. A denomination cannot be accepted if another right,
already granted to a third party under any intellectual property legislation,
is already in use.
- A variety denomination must contain a minimum of two characters.
- In general, the difference of a single letter or number between two
denominations may be considered liable to mislead or cause confusion concerning
the identity of the variety, except where
- the difference of one letter is prominent in a way that it makes the
denomination clearly distinct;
- the denomination consists of a combination of letters and numbers;
- the denomination consists 'solely of figures'. The use of numbers
alone is not recommended for naming varieties, unless it is an established
practice (i.e., where a variety is marketed within
a limited circle of specialists (e.g., inbred
lines) or is an accepted market practice for particular variety types (e.g., hybrids).
- Any explicit or implicit claims incorporated as part of a variety name may
only be used if they are accurate and verifiable. (e.g., in the case of some wheat varieties, the
prefixes, 'FT', for Fusarium tolerant, or, 'FTHP', for Fusarium
tolerant high protein).
- A variety name shall not be such as to be considered offensive.
- If a variety is protected, marketed or known in another country and the
denomination is not acceptable to the Commissioner, alternate names may be used
and will be the proposed denomination. The denomination used in the foreign
country(ies) will be recorded as a synonym.
- Accents or other marks may be included with a French variety denomination.
However, the addition or deletion of such accents does not constitute enough of
a difference to be considered a new denomination.
- No punctuation marks or other typographical symbols, subscripts,
superscripts or designs are allowed in any denomination. However, hyphens are
acceptable, as are spaces when they are used between words.
- For denominations consisting of only numbers or number/letter combinations,
the use of spaces is strongly discouraged. In addition, and as much as
possible, denominations consisting of number/letter combinations should not
contain more than 10 characters.
- Denominations consisting of mixtures of upper and lower case letters
(excluding the first letter of a name) and upper case letters only are
discouraged.
- Where a variety is no longer protected, the denomination may not be reused
for a variety of the same or similar crop kind. However, a denomination may be
re-used where the original variety is no longer cultivated and the denomination
has not acquired particular importance. These situations are determined on a
case-by-case basis but generally, if the original variety no longer remains in
commercial existence, and has not been included on an official list or register
of plant varieties within the last ten years, the denomination may be able to
be re-used.
- A denomination should be unique, in that it should not be used more than
once in the same botanical class. The classes have been developed such that the
botanical taxa within the same class are considered to be closely related
and/or liable to mislead or to cause confusion concerning the identity of the
variety. In most cases a denomination class is equal to a genus; however there
are exceptions forming special classes. The variety denomination classes can be
found in Annex 1 of UPOV
document
INF/12/1.