The official variety description suffices to demonstrate the distinctness of the variety

On September 18, 2017, House Foods Group, Inc. applied to the CPVO for a Community plant variety right for the onion variety SK20, belonging to the species Allium cepa. In the technical questionnaire, House Foods referred to the variety's low lachrymatory factor and pyruvic acid as distinguishing characteristics. After a technical examination, the CPVO found that the variety met the criteria of distinction, uniformity, and stability. House Foods submitted a request to the CPVO that the low lachrymatory factor and pyruvic acid which had been described in the technical questionnaire be included in the description of the characteristics. However, the CPVO decided not to include the low lachrymatory factor and pyruvic acid in the official variety description.

House Foods appealed this decision since the CPVO granted it a narrower protection than it requested by not including the low lachrymatory factor and pyruvic acid in the official variety description.

The appeal was dismissed by the Board of Appeal of the CPVO as inadmissible. The CPVO argued that the applicant’s appeal was inadmissible because there is no interest in bringing proceedings if the appeal cannot in any case remove the contested decision and that that applied to this case since the applicant was contesting only part of the variety description concerning the list of its characteristics and not the grant decision itself.

House Foods then brought the case to the General Court.

The General Court found that the inclusion of the additional characteristic in the description would not change the scope of protection granted for the variety. According to the General Court the grant of community plant variety rights to a candidate variety does not require an exhaustive assessment of all the characteristics which could result from that variety’s genotype, but only of those of particular importance to its protectability and, in particular, its distinctness. Accordingly, the technical examination, provided for in Article 55 of Regulation No 2100/94, is intended only to determine whether the candidate variety is sufficiently distinct, uniform and stable in relation to other varieties of common knowledge. That examination is not intended to assess all of the characteristics that can result from the candidate variety’s genotype or the use or commercial value of those characteristics since the grant of protection to a new variety is in no way conditional upon the presence of characteristics that have intrinsic commercial value.

The official variety description established by the CPVO is therefore not intended to reflect the expression of all the characteristics that result from the candidate variety’s genotype and which characterize it, but only certain specific characteristics which suffice to demonstrate the distinctness of the variety.

Consequently, the General Court dismissed House Foods´ action and confirmed that the Board of Appeal of the CPVO was right to find that House Foos had no interest in bringing proceedings.