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Introduction - Overview of the Plant Variety Registration System -
In Japan, the Seed and Seedlings Act has been established to protect new seed varieties. In order to register a variety,Ministry of AgricultureIt is necessary to apply for registration of the plant variety to .
A "breeder's right holder" who has obtained breeder's rights through the registration of a variety can use the registered variety commercially (producing and selling seeds, etc.) and can distribute the variety using the registered name in the market without interference from third parties. If an unauthorized person commercially uses seeds, seedlings, harvests, etc. of a registered variety, this constitutes an infringement of the breeder's right, and the breeder's right holder can seek an injunction to stop such use and claim damages.
It is difficult to distinguish between varieties of plant seeds and seedlings from their appearance alone, and the name of the variety is the deciding factor in identifying the variety. Therefore, by allowing variety registration, we aim to ensure the fair and smooth distribution and use of seeds and seedlings.
Once a variety registration application is registered,25 years(Fruit trees, timber and other perennial plants are protected.30*However, depending on the date of registration, the duration of the registration may vary according to the old Seed and Seedlings Act.
Plant variety registration is an important system that protects your important varieties from imitation and unauthorized use both domestically and internationally.
Like other intellectual property rights, it is territorial and must be registered in each country where it is desired to protect it. In recent years, the illegal leakage of Japan's plant varieties overseas, especially in East Asian countries, has been increasing and has become a problem. Finally, the Ministry of Agriculture, Forestry and Fisheries has"Urgent measures to prevent the outflow of plant varieties overseas"With the announcement of this document, there is a need to raise awareness of the plant variety registration system.
We have created this page to provide you with useful information on trademarks, which are closely related to plant variety registration, along with examples from within Japan.
Differences between protection under the Seed and Seedlings Act and protection under the Trademark Act
In principle, a name that has already been registered as a variety under the Plant Variety Seed and Seedlings Act cannot be registered as a trademark within the same scope.
→The system works in such a way that a "name of a plant variety" registered in one place cannot be registered in the other place.
① Seed and Seedlings Act
Even if a trademark owner applies for a variety registration with the name of a variety that is identical/similar to his/her registered trademark, he/she will not be able to receive a variety registration (Article 4, Paragraph 1, Items 2 and 3 of the Plant Variety Seed and Seedlings Act).
Unlike trademark rights, the "use of a name" itself cannot be monopolized. This is because all persons who transfer seeds commercially, even those other than the breeder, are required to use the name of the registered variety (Article 22, Paragraph 1 of the Seeds and Seedlings Act).
However, by not monopolizing the use of the name and instead promoting its use, it is possible to distribute the seeds and seedlings widely and smoothly (This is also the purpose of the Seed and Seedlings Act.).
In addition, once the protection period for a variety registration has expired (25 or 30 years), the name of the registered variety becomes available for anyone to use.
②Trademark Law
- During the period of variety registration, a breeder's right holder will not be able to obtain a trademark registration even if he or she applies for registration of a trademark that is identical or similar to the name of his or her registered variety (Trademark Act, Article 4, Paragraph 1, Item 14).
- In addition, after the variety registration period has expired, the name of the variety becomes a generic name/descriptive trademark and cannot be registered (Article 3, Paragraph 1, Items 1 or 3 of the Trademark Act).
- If the trademark applied for is recognized as the name of a registered variety and the designated goods are harvested products, it falls under Article 3, Paragraph 1, Item 3 of the Trademark Law. Also, if it is deemed likely to cause misunderstanding regarding the quality of the goods, it falls under Article 4, Paragraph 1, Item 16 of the Trademark Law (Trademark Examination Handbook 42.114.01).
- If the trademark applied for is recognized as the name of a registered variety and the designated goods are processed products that use harvested crops as raw materials, it is necessary to determine whether the trademark falls under Article 3, Paragraph 1, Item 3 of the Trademark Act. If it is deemed likely to cause confusion regarding the quality of the goods, it will fall under Article 4, Paragraph 1, Item 16 of the Trademark Act (Trademark Examination Handbook 42.114.01).
Under the Trademark Act, it is possible to register a trademark for goods or services by specifying the name of a variety, such as "seeds", "seedlings", "vegetables", "fruit", "transportation of agricultural products", "seedling training", or other harvested or processed products.
Unlike the Seed and Seedlings Act, this law allows for exclusive use of a product or service, preventing anyone from using the name (mark). Therefore, if you want to apply a trademark to your harvested or processed products, you should also obtain a trademark right.
*On the other hand, it also serves to protect the rights to processed products from being arbitrarily seized by third parties.
In principle, a trademark that is identical or similar to the name of a registered variety cannot be registered. This does not apply only to "other people," so even if the breeder files a trademark application, it will be rejected.
Example 1) Registered variety name "ABC": Apple seedling
Applied trademark "ABC": Apple seedlings, apple seeds, etc. → Registration not possible
The trademark cannot be registered because it falls under Article 4, Paragraph 1, Item 14 of the Trademark Act.
Example 2) Registered variety name "ABC": Apple seedling
Trademark application "ABC": Apple juice, confectionery, apple wine, etc.→ Registration not possible
In the case of processed apples made using variety ABC, the provisions of Article 3, Paragraph 1, Item 3 of the Trademark Act apply, while in the case of processed apples made using varieties other than variety ABC, the provisions of Article 4, Paragraph 16, Item XNUMX of the Trademark Act apply, and therefore the trademark cannot be registered.
Example 3) Pending variety name "ABC": Apple seedling
Trademark application "ABC": Apple juice, confectionery, apple wine, etc. → Registration is possible, but the timing of application is important
If a trademark application is filed before the variety is registered, it may be possible to register it. However, if the application for the variety is published and the trademark examiner recognizes it as the name of a variety, it may not be possible to obtain trademark registration as it will fall under Article 3, Paragraph 1, Item 3 or Article 4, Paragraph 1, Item 16 of the Trademark Act, just as in Example XNUMX) above.
3) Points to note
- A trademark that is identical or similar to a registered variety name cannot be registered in duplicate.
- If a variety has already been registered, even if you apply for a trademark with the same name and the same/similar scope of rights, it will be rejected on the grounds of the variety registration. *Trademark applications by the breeder themselves will also be rejected.
- Conversely, if there is a trademark with the same name and the same/similar scope of rights, the application for the plant variety registration name will be rejected. *Similarly, the application will be rejected regardless of whether it is yours or someone else's.
- When filing an application for a plant variety registration, we recommend that you conduct a trademark search in advance.
- In particular, the following products are often the subject of refusal, and they are areas of rights that should always be included in a trademark search.
[Class 31]
- Subclass code 33C01: Seeds
- Subgroup code 33D01: trees, grass, turf, dried flowers, seedlings, saplings, flowers, pasture grass, bonsai
*The designated product in the trademark is a comprehensive description that includes all plants, without specifying a specific type of plant.
*On the other hand, even if you are filing a trademark application within the above scope, we believe that you should still investigate any previously registered variety names.
4. How to avoid mutual conflicts when registering both a variety and a trademark
- A. The variety name will be something like "No. XX" and the trademark registration name will be "the name you wish to promote as a brand."
Example)Fukuoka "Amaou" strawberry genusVariety name: "Fukuoka S6"
Registered trademark "Amaou \ Amaou" (Registration No. 4615573) (Registration No. 4904223)
Designated goods: Fruits, vegetables, seedlings, soft drinks, processed foods, fruit wine, etc.
The advantage of option A is that it is easy for local governments, agricultural associations, etc. to promote brand strategies. If you are planning to brand your product from the beginning, option A is a realistic solution.
Another advantage is that, for example, if an improved variety of "Fukuoka S6" is developed in the future, it will be easy to continue selling that strawberry as "Amaou."
- B. The name of the variety and the registered trademark name will be the same, while the scope of the trademark rights will be limited to the harvested products and processed products of the variety.
Example)Hokkaido "Yumepirika" rice varietyVariety name: "Yumepirika"
Registered trademark "Yumepirika" (Registration No. 5199079)
・Designated goods: rice, processed grain products, confectionery and bread, sake, etc.
The disadvantage of B is that in principle it is not possible to obtain a trademark registration for seedlings, etc.
In addition, for harvested products or processed products, it may be necessary to file a variety registration application and a trademark application at the same time, or to file a trademark application between the filing of the variety registration application and the publication of the application, which may entail certain risks.
Plant variety registration alone is not sufficient protection of rights
◎ Why is variety registration alone not enough?
As mentioned above, if a variety is registered, identical/similar trademarks will be excluded, but trademarks designating the harvested or processed products of that variety may be registered.
Therefore, even if you try to process and sell a registered agricultural product, if the field of processed products is controlled by a third party, you will not be able to use the name of the plant variety in the processed product, even if you are the legitimate breeder's right holder.
◎ The following case is an example of where a breeder suffered damage as a result of this.
◆The "Aizu no Kaori" buckwheat seed incident◆
A third party has seized the trademark rights for a product similar to "Aizu no Kaori"!
| Registered variety name: "Aizu no Kaori" | Registered trademark "Aizu Fragrance" |
| Rights holder: Fukushima Prefecture | Rights holder: (general company) |
| Type: Buckwheat | Classification: Class 30 Designated goods: buckwheat flour, buckwheat noodles, buckwheat crackers, buckwheat sauce, etc. |
| Registration number: 17856 | Registration number: 5258227 |
| Date of registration: 2009/03/16 | Date of registration: 2009/08/21 |
◎ How should Fukushima Prefecture sell processed products?
If you want to sell processed products protected by trademark rights,Display of variety name and ingredients, etc.There is no other way than to use "The Fragrance of Aizu" as such.
(Example: Ingredients display section on package or content display, etc.)
However, even if you display it with that intention, if "Aizu no Kaori" is displayed larger than other characters or in a different color or font on the packaging or other surface, this becomes what is known as "trademark use" and you may be sued for trademark infringement, so you must be careful when using it.
Therefore, the range in which buckwheat flour, buckwheat noodles, etc. can be safely used is quite narrow.
Lessons Learned
When registering a plant variety, you should also consider applying for a trademark, taking into account the possibility of using the variety in harvested and processed products.
・Anyone can register a trademark application even if they have not yet sold any products using the trademark, and it is a first-come, first-served system. In order to prevent a third party from getting there first, you should file a trademark application before announcing the name of the variety.
- It is also an effective strategy to obtain rights to the variety name and trademark name as separate names, such as the aforementioned "Amaou" from Fukuoka Prefecture, and the "Hime Ruby" and "Dragon Red" described below.
Domestic Examples
We will introduce some examples of famous varieties that have been registered as varieties and trademarks.
| ◎ "Amaou" Strawberry genus Variety name: "Fukuoka S6" Registered trademark "Amaou \ Amaou" (Registration No. 4615573) (Registration No. 4904223) Designated goods: Fruits, vegetables, seedlings, soft drinks, processed foods, fruit wine, etc. * "Amaou" is often cited as a good example of combining variety registration and trademark registration to make good use of it. The strategic cooperation between "Fukuoka Prefecture" and "JA Zennoh Fukuren" was the key to its success. This will be very helpful. |
| ◎ "Hime Ruby" Citrus Variety name: "Eclair 65" Registered trademark "Hime Ruby" (Registration No. 5533868) |
| ◎ "Dragon Red" Potato seeds Variety name: "Nishikai 31" Registered trademark "Dragon Red" (Registration No. 5394533) |
| ◎ "Yumepirika" Rice seeds Variety name: "Yumepirika" Registered trademark "Yumepirika" (Registration No. 5199079) |
| ◎ "A bolt from the blue" Rice seeds Variety name: "A bolt from the blue" Registered trademark "A bolt from the blue" (Registration No. 5739656) (Registration No. 5866975) "A bolt from the blue (logo)" (Registered No. 5749625) |
”HARAKENZO more " We support breeders
We believe that newly created varieties are the culmination of the efforts of many people. Variety registration is very important in order to properly distribute the variety and protect the rights to it.
On the other hand, as mentioned above, it is very effective to combine it with a trademark right in order to provide comprehensive protection for the harvested products of that variety and their processed products.
”HARAKENZO more We would like to be of assistance to breeders in protecting their intellectual property, so please feel free to contact us for any inquiries.
- In addition, our office is involved in the Ministry of Agriculture, Forestry and Fisheries' "Emergency Measures to Prevent the Outflow of Plant Varieties, etc. Overseas."We have been selected as one of the consultation centers and designated agents for plant variety registration.If you are considering registering a plant variety overseas, and would like to prevent the damage caused by the outflow of plant varieties overseas, which has been increasing in recent years, please feel free to contact us.