Grower wins battle to nullify breeder's rights over cultivar

Nursery wins two year battle for Canna 'Phasion' breeding rights

Nursery owner Keith Hayward has won his fight over Plant Breeders’ Rights for Canna ‘Phasion’. The battle lasted more than two years and involved court hearings in South Africa. It was finally settled in France at the offices of the Community Plant Variety Office (CPVO). Hayward owns Hart Canna. In July 2002 he submitted a legal petition to the CPVO, claiming Plant Breeders’ Rights for Canna ‘Phasion’ should be declared null and void because it was not new when the application was made. In November 2003, the CPVO said the rights were declared null and void but that the holder of the rights could appeal if he wanted to and that the rights would remain in force until he had decided. The holder, Keith Kirsten of Johannesburg, did appeal and now the CPVO has rejected that appeal and the rights will be terminated. Hayward said: “The decision is a vindication for those of us who feel that the rights in Canna ‘Phasion’ should never have been granted. It’s really good news.” ‘Phasion’ is also known as ‘Durban’ and ‘Tropicanna’, and a case over the rights in South Africa went as far as the Supreme Court of Appeal when Kirsten took action against another nurseryman for selling 3,000 rhizomes of the Canna without paying royalties. The other nurseryman, Pieter Breugem, claimed, as did Hayward, that the plant had been commonly available before rights were given. He appealed and won his case.

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