Inclusion of trade marks in plant variety names or synonyms

Issue summary

A plant variety name/synonym must not include a trade mark registered in respect of live plants, plant cells and plant tissues.

Unlike when trade marks are compared under the Trade Marks Act 1955, the Plant Breeder's Rights Act 1994 doesn't allow consideration of whether the included trade mark is deceptively similar to the overall variety name, or if the relevant plant is actually similar to the goods the trade mark is registered for.

This can cause apparently unfair results, preventing PBR stakeholders registering their preferred name, even where an equivalent trade mark would be registrable.

History

• Identified for action 24 June 2021
• Policy development 20 December 2022 

Comments

In 2022, IP Australia commissioned an independent research report from the University of Queensland (UQ) on issues related to the interaction of trade marks and plant names in the PBR Act.  
 
IP Australia is currently considering the recommendations made by UQ. The Government has not taken any decision on possible PBR reform. 
   
You can give us feedback on the recommendations via our consultation hub.