Plant breeders' rights protect plant varieties provided that they are new, distinct, uniform and stable, and that a valid denomination has been given.
A plant variety means a plant grouping within a single botanical taxon of the lowest known rank, which grouping, irrespective of whether the conditions for the grant of plant breeders' rights are fully met, can be:
- defined by the expression of the characteristics resulting from a given genotype or combination of genotypes,
- distinguished from any other plant grouping by the expression of at least one of the said characteristics, and
- considered as a unit in view of its suitability for being propagated unchanged.
It is important to distinguish a "variety" from a "species". So potatoes and apples are species, while "Bintje" is a potato variety whose denomination is "Bintje" and "Jonagold" is an apple variety whose denomination is "Jonagold".
A Belgian breeder's certificate can be issued for all botanical genera and species, including their hybrids.
The variety must be new.
A variety is considered as new if, at the determined date of filing of the application or, where applicable, on the date of the claimed priority for this application, the varietal components or harvested material of the variety have not yet been sold or otherwise disposed to third parties by or with the consent of the breeder, for purposes of exploitation of the variety:
- within the territory of Belgium, earlier than one year before the above-mentioned date;
- outside the territory of Belgium, earlier than four years or, in case of trees or vines, earlier than six years before the above-mentioned date.
The variety must also be distinct. Distinct means that the variety must be clearly distinguishable, by reference to the expression of the characteristics resulting from a particular genotype or combination of genotypes, from any other variety whose existence is a matter of common knowledge at the time of the filing of the application.
For a variety to be the subject of a breeder's certificate, it must also be uniform. A variety is deemed to be uniform, if it is sufficiently uniform in the expression of those characteristics which are included in the examination for distinctness, as well as any other characteristic used for describing the variety, except for the variation that may be expected taking into account the particular features of its propagation.
The variety must also be stable. A variety is deemed to be stable, if the expression of the characteristics included in the examination for distinctness, as well as any other characteristic used for describing the variety, remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle.
In order to be granted plant breeders' rights for a plant variety, a proposal for a valid variety denomination must also be submitted to the Belgian Intellectual Property Office Belgium. To be valid, the denomination proposed must not be:
- contrary to public policy or moral standards;
- in general, difficult to recognize or reproduce by its users;
- identical to or likely to create confusion with the denomination of another variety of the same species or a closely related species, or other names regularly used for the marketing of goods, or that have to be reserved under other legislation; and
- when used on Belgian territory, infringe the rights of third parties.