Legal dispute over rights expands

Battle for PBR over Canna 'Phasion' moves from South Africa to England

The international battle for plant breeders’ rights (PBR) over Canna ‘Phasion’ is set to move from South Africa to England. Local rights were given to South African nurseryman Keith Kirsten, but another grower, Pieter Breugem, sold 3,000 rhizomes of the Canna without paying royalties. Kirsten sued, but Breugem has maintained that the plant had been commonly available before rights were granted to Kirsten. A legal challenge went to the high courts in South Africa. Kirsten won and Breugem had to pay costs. Leave to appeal was refused. Breugem persisted and the case went before South Africa’s Supreme Court of Appeal. It was heard not long after a similar challenge by Keith Hayward, holder of the national Canna collection. The European Community Plant Variety Office declared the rights in Europe null and void. Breugem’s appeal was upheld and Kirsten had to pay the costs of the cases. Hayward, whose business is in Hampshire, though delighted with the decision, is not happy with a further twist to the story. “The registrar of PBR in South Africa took the judgement literally and terminated the rights from the date of the court ruling, which can not be what the judge intended because it retains the rights before that date and, therefore, Breugem continues to be guilty.” He said there was now a battle to get the rights made null and void as in Europe, meaning as if the rights never existed.

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