Van Noort has agreed to cease trading his 'Jolly Bee' variety, which Blooms of Bressingham NA said was too similar to its Rozanne 'Gerwat' cultivar.
The dispute lasted more than seven years since 'Jolly Bee' was granted protection by Plant Variety Rights (PVRs) in 2003, three years after the introduction of Rozanne.
Marco Van Noort said he was devastated by the decision, claiming the battle had cost him in excess of EUR200,000 and disputing Bressingham's description of an amicable settlement.
"We are not hostile because I am in the corner with my hands and feet tied up," he said. "What they did isn't friendly. We are a small nursery and I can't explain what a bad feeling this is. I'm not used to that sort of thing. I'm a breeder and a grower and this is another world. In the end I just said they could keep it because it was costing too much money with lawyers. At one point we thought we would have to close the nursery but now we have decided to try to carry on."
Though he did not dispute the findings, Van Noort described them as strange, pointing to the different sizes of the two varieties.
A statement released by Blooms of Bressingham NA said: "Independent DNA research revealed that there are virtually no differences in the DNA of both varieties. In addition, new investigations revealed that both varieties are not, at least not clearly, distinct from one another from a morphological point of view.
"Blooms of Bressingham NA recently informed Marco Van Noort about these test results and requested that Van Noort cease and desist the exploitation of 'Jolly Bee.' The settlement between parties has been concluded in a good manner and relationship."
The agreement reached will see trading of 'Jolly Bee' end no later than 1 July, at which time its PVRs will be cancelled.
Blooms of Bressingham NA president Gary Doerr said: "The approach Blooms took is one model for future situations. An independent lab in the Netherlands conducted a morphological comparison and a DNA tracer examination. In both cases, the two varieties were shown to be remarkably similar. Morphological and DNA examination go hand in hand. Morphological testing involves examination of the plants grown side by side.
"Everyone will draw their own conclusions as to whether they are exactly the same. However, Blooms of Bressingham, Marco van Noort and Witteman & Co agreed that the two cultivars were not different enough to warrant the two varieties co-existing in the marketplace."
All Comments
I have just read the article about Geraniums 'Jolly Bees' & 'Rozanne'. I have grown both these varieties for years, and always said to my customers that they are so similar that it is difficult to tell them apart. However, in my opinion 'Jolly Bees' is the stronger variety.
I would also like to point out my long held opinion that PBR's do nothing for the ornamental horticultural industry - in fact, they serve to restrict the introduction and growing of plants.
I grew both of these varieties side-by-side during my days at Croftway Nursery and must agree with my friend Claire on the apparent difference between them. Certainly, when we grew them in a garden setting, Jolly Bee was more vigorous and, to be honest, better. Having said that, I wouldn't want to be challenged to a blind identification test!
However, I can not agree with her about Plant Variety Rights. By rewarding and protecting the efforts of plant breeders and developers, innovation and development in horticulture is encouraged. There is no doubt in my mind that the rate of innovation in ornamental horticulture has accelerated in the last 15 years or so since the use of PVR became more widely adopted. With effective licensing strategies, there is no reason why even modest sized growers should not have access to new varieties, either through direct licensing or by access to licensed young plants production. It is reasonable that breeder-growers will want to retain production/sales exclusivity at launch, but my experience suggests that a broader licensing strategy after that tends to reap the greatest benefits for all concerned and maximizes plant availability.
What this case does illustrate is the need for improved standards in DUS \(distinctiveness, uniformity, stability) testing by the competent authorities during the PVR application process.. In particular, better definition of "minimum distances" between varieties is required so that plants can be considered truly distinct. DNA tools can help us with this, although there is dispute as to how this should be measured \(the Jaccard Index is not always as useful as it might seem - Alstroemeria, for example, display a very high level of genetic homogeneity). I would recommend that plant breeders should join CIOPORA, the plant breeders organisation, which currently has a working party that hopes to develop a workable policy on this subject and will then lobby the CPVO and other PVR bodies to get such a policy adopted in law and in practice. It might surprise many in the industry to learn that many plant breeders \(including, I would say, a majority at the recent CIOPORA conference [unreported by HW, sadly]) would actually like to see minimum distances increased in order to try and cut down on "me too" varieties which simply clog up the market, reduce the viability of new varieties and confuse the end consumer \(and growers!).
Having grown both offerings side by side, in my eyes, there is enough of a difference - Jolly Bee is the stronger and better of the two cultivars - even if the genetic variation is minimal - there is enough that means Jolly Bee is not only a better garden plant - but also more compact, and better in the nursery situation.
Surely blooms should have collaborated and worked out a deal, rather than having to pull Jolly Bee?? There is no such thing as bad competition unless you're running scared or have an intrinsic problem with your own business/model/strategy.
Chris Bonnett - Gardening Express
As the person to first be approached by Donald and Rozanne Waterer with
their new geranium in October 1992 with their wonderful discovery to be named Rozanne, I feel I should make some comment in relation to the reaction to the steps taken by Gary Doerr of Blooms of Bressingham North America on behalf of the breeders. It is a long story, which I won't go into here, but let's state the basic facts;
The Plant Variety Rights system in Europe, and many other countries in the
world, has been put in place, which allows and encourages plant breeders or discoverers to protect their invention. The protection is costly and is only
likely to be worthwhile to plants deemed to have a commercial future. New
plants have long been seen as the lifeblood of the industry. The breeder potentially offers new products to the gardening market and both they and those who invest in marketing to national and international markets need the protection Plant Variety Rights and Plant Patents offer to make the considerable investment required to promote these new plants.
All those, including myself as a breeder or discoverer, in this industry must
be aware that the protection in these systems are only of value if they can be enforced. The integrity of the European and other similar plant protection laws are predicated on breeders asserting their rights if required, and although it might seem on the face of it in this case to be a David and Goliath situation, Blooms should be commended on their determination to
uphold the rights of the breeders they represent.
Working within the plant breeders system since 1976, Blooms of Bressingham were the first company to promote new protected plants, and over time built a solid reputation for upholding breeders rights whilst under
my leadership until the company was sold in 1997. The new plant business now under the stewardship of Gary Doerr, President of Blooms of Bressingham North America continues to believe it is vitally important, and
part of their duty to protect breeder clients interests.
Historically, many of the Blooms of Bressingham breeder clients are plant
hobbyists and enthusiasts,.and generally of modest means with no direct connection to the industry. Geranium 'Rozanne'®, and the elderly, enthusiastic plants people, Donald and Rozanne Waterer fitted this profile
perfectly. I worked closely with the Waterer's to bring their product to market, and although unfortunately Donald and Rozanne have passed away, the plant breeders rights have been passed to their heirs. It was on behalf of the heirs and with my support that Blooms of Bressingham challenged the existence of Geranium 'Jolly Bee' in the market place.
All parties involved agreed that the work by the independent laboratory were conclusive. That implies that the differences in growth observed by some must be explained by something other than genetics. Gardeners and horticulturists alike understand that there are many cultural factors that may
account for these differences, and observations can often be subjective.
Finally, I have observed Geranium 'Rozanne'® for nearly twenty years, and have seen it at RHS Wisley trials alongside "Jolly Bee" showing no discernable difference. I also have a plant of "J.B." in my garden in a group of 'Rozanne', and when growing together it is impossible to tell them apart.
In the past I served as M.D. and Chairman of Blooms of Bressingham. I am now Chairman of Blooms Nurseries Ltd., the Bloom family business.
Long time gardener and
author, consultant to Blooms of Bressingham North America.
Surely the basic question is this: If 'Jolly Bee' is now considered identical to Rozanne, why was 'Jolly Bee' granted PVR protection in the first place? This has proved a huge blunder and it is this which has cost Marco van Noort so dearly.
If we can't depend on rights being denied to plants which are no different from existing varieties - what's the point of the system? The PVRO is to blame for this whole sorry business.
I am still thinking this are 2 different plants and that they made a big mistake in a tissue culture lab, here in the Netherlands where they had both var.!!!
'Jolly Bee' is growing much better then 'Rozanne'.
Adrian Bloom, and Graham Rice, both make very valid points on the whole issue/s being discussed, but I have to say, I am with Luc Klinkhamer opinion on this one.... Chris Bonnett - Gardening Express
I have been working as a volunteer at a small specialist nursery for six years. DNA research may show the closeness of the relationship between these two Geraniums, but let me take this discussion closer to home: Man vs. Chimpansee and Bonobo. We are very closely related to these two species of great Apes. Our DNA types match well over 96 %. Some scientists have advised to place them in the genus "Homo" as well... My view is: DNA isn't everything, but sometimes looks and behavior are... There should have been scientific and independent trials to determine the relationship between G. "J B" and G."R", in vivo. But that takes time, and small nurseries like Marco van Noort's do not have the means to wait for the outcome. So in the end, it is a matter of David and Goliath...