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Plant breeders’ rights in the Netherlands give the breeder of a new plant variety the exclusive right to produce, sell, import and export propagating material of that variety (Article 57 Dutch Seeds and Planting Materials Act 2005). The right lasts 25 years, or 30 years for designated crops. A foreign breeder can enforce the right against unlicensed propagation before the court in The Hague, with a Dutch lawyer.
This page explains how a Dutch plant breeder’s right (kwekersrecht) is obtained, what it covers, which exceptions apply and how it is enforced. Plant breeders’ rights sit alongside patents and trademarks; for an overview of all intellectual property rights, see our intellectual property law hub.
What do plant breeders’ rights protect?
A plant variety that is new, distinct, uniform and stable. The right can be granted for varieties of all plant genera and species (Article 49(1) Seeds and Planting Materials Act 2005 (ZPW)).
- New: no propagating or harvested material of the variety was sold or otherwise made available for exploitation, by or with consent of the breeder, more than one year before the application in the Netherlands, or more than four years (six years for trees and vines) before the application outside the Netherlands (Article 49(2)).
- Distinct: clearly distinguishable from every other variety that is commonly known at the time of the application (Article 49(4)).
- Uniform and stable: sufficiently uniform in its relevant characteristics and unchanged after repeated propagation (Article 49(5) and (6), with Article 35(3) and (4)).
Whether a variety is distinct, uniform and stable is established in a technical examination under the responsibility of the Board for Plant Varieties (Raad voor plantenrassen) (Article 49(7)).
How do you apply for plant breeders’ rights in the Netherlands?
You file an application with the Board for Plant Varieties, with a proposed variety denomination, a description of the variety and the characteristics that distinguish it from other varieties of the same crop (Article 55(1) and (2) ZPW).
- Check who may apply. The right belongs to the breeder. If the variety was bred by an employee whose job involves breeding that crop, the claim belongs to the employer (Articles 50 and 51 ZPW).
- Choose an address for service. An applicant without a residence or registered office in the EU must elect domicile in the Netherlands with an authorised representative (Article 55(4)).
- Claim priority if relevant. If you applied first in another state party to the UPOV Convention, you can claim priority by filing a provisional application in the Netherlands within twelve months, followed by a certified copy within three months and a full application within two years (Article 54(1)).
- Provide plant material for the technical examination when the Board asks for it (Article 55(3)).
- Grant. The Board decides on the application and registers the variety in the variety register; the right takes effect on the day after registration (Article 56).
If two breeders independently developed the same variety, the right belongs to whoever filed first (Article 53 ZPW). File before you start commercial sales, because sales can destroy novelty after the grace periods of Article 49(2).
Should you choose a Dutch or an EU plant variety right?
A Dutch right covers the Netherlands. A Community plant variety right, granted by the EU Community Plant Variety Office (CPVO) under Regulation (EC) No 2100/94, covers the whole EU. The procedural rules of the Dutch Code of Civil Procedure for intellectual property cases apply to both (Article 1019 Dutch Code of Civil Procedure).
The choice depends on where the variety will be grown and sold. A breeder that licenses growers only in the Netherlands may opt for a national right. A breeder that sells propagating material in several EU countries may need EU-wide protection. Discuss the choice before filing, because the novelty periods of Article 49(2) ZPW limit how long you can wait.
What can the holder of a plant breeder’s right prohibit?
The holder has the exclusive right to produce or multiply propagating material of the variety, condition it for propagation, sell it, export it, import it and stock it for those purposes. Others need the holder’s consent (Article 57(1) and (2) ZPW).
Protection extends further in two ways:
- Harvested material and products. The right also covers harvested material, such as cut flowers or fruit, obtained from unauthorised propagating material, and products made directly from unauthorised harvested material, unless the holder could reasonably have exercised his right at an earlier stage (Article 57(4) and (5)).
- Related varieties. The right covers essentially derived varieties, varieties that are not clearly distinguishable, and varieties whose production requires repeated use of the protected variety (Article 58(1)).
What are the exceptions to plant breeders’ rights?
The exclusive right does not apply to acts done privately and for non-commercial purposes, acts done only for scientific research, and acts done to breed other varieties (Article 57(3) ZPW). That last exception is known as the breeder’s exemption.
- Farm-saved seed. For crops designated by government decree, a grower may use harvested material for propagation on his own farm, subject to conditions such as remuneration (Article 59 ZPW).
- Exhaustion. Material put on the market in the EU or EEA by or with consent of the holder may be traded further, but not propagated again or exported to a country without comparable protection (Article 60).
- Compulsory licenses. The holder must grant licenses needed in the public interest; if he does not, the Board can grant them (Articles 61 and 62 ZPW).
How long do plant breeders’ rights last in the Netherlands?
A Dutch plant breeder’s right lasts 25 years from the day after its registration in the variety register. For crops designated by the Minister, the term is 30 years (Article 72 ZPW).
The right lapses earlier if the annual fee is not paid within six months after it became due (Article 74(1)). The court can annul a right if the variety was not new or distinct when the right was granted (Article 75(1)). Keep the documents from the examination: they are your evidence in a nullity action.
How do you enforce plant breeders’ rights in the Netherlands?
Through the District Court of The Hague, which has exclusive jurisdiction in first instance for infringement claims, including summary proceedings; appeals go to the Court of Appeal of The Hague (Article 78 ZPW).
| Claim | What it requires | Article |
|---|---|---|
| Injunction | An act under Article 57 without consent; also against intermediaries whose services are used | Art. 70(1) and (2) ZPW |
| Damages | The infringer acted knowingly; this is always the case after a bailiff’s writ pointing out the conflict | Art. 70(4) ZPW |
| Surrender of profits | Instead of damages; the court may award damages instead if the circumstances do not justify it | Art. 70(6) ZPW |
| Claim as property, withdrawal from circulation, destruction | Infringing material and the tools mainly used to produce it, subject to proportionality | Art. 70(8) ZPW |
| Information on origin and distribution | Ordered against the infringer and certain third parties on a commercial scale | Art. 70(11) ZPW |
| Reasonable compensation before grant | Acts between application and grant, after 30 days from a bailiff’s writ | Art. 71 ZPW |
Because the bailiff’s writ makes later infringement knowing, it makes sense to serve one early. The losing party can be ordered to pay the winner’s reasonable and proportionate legal costs (Article 1019h Dutch Code of Civil Procedure). How profit claims are calculated is explained on our page on profit disgorgement under Dutch law.
What should you do if you find unlicensed propagating material?
Secure evidence first, then put the grower or trader on notice by bailiff’s writ. From that moment at the latest, damages can be claimed, because further acts always count as knowing infringement (Article 70(4) ZPW).
- Secure samples and records. The preliminary relief judge can grant leave for evidence seizure, a detailed description or samples of infringing material, if necessary without hearing the other side (Article 1019b Rv).
- Have the material analysed to establish whether it is the protected variety or a variety covered by Article 58.
- Serve a bailiff’s writ describing the right and the infringing acts.
- Start summary proceedings in The Hague if the infringement continues, for example during the growing or selling season.
Practical example: a foreign breeder and a Dutch grower
Suppose a Kenyan rose breeder holds a Dutch plant breeder’s right for a rose variety and licenses it only to growers in Kenya. A Dutch trader imports cut roses of the variety from a grower in another country, where the breeder never licensed propagation and has no protection.
Because the cut flowers are harvested material from unauthorised propagating material, the right extends to them unless the breeder could reasonably have acted against the propagation itself (Article 57(4) ZPW). The breeder serves a bailiff’s writ on the trader and, when imports continue, asks the preliminary relief judge in The Hague for an import ban.
When should you involve a Dutch lawyer?
Involve a Dutch lawyer before you file, when you draft license agreements with growers, and as soon as you find unlicensed material or receive a claim from a breeder. The deadlines for novelty and priority, and the bailiff’s writ that triggers damages, determine how strong your position is.
MAAK Advocaten in Amsterdam advises breeders, growers and traders on plant breeders’ rights and licenses, and conducts proceedings before the District Court and the Court of Appeal of The Hague. Read more about our Dutch intellectual property lawyers or contact us. For license agreements in general, see our page on the licence contract under Dutch law.
Frequently asked questions about plant breeders’ rights in the Netherlands
How long do plant breeders’ rights last in the Netherlands?
A Dutch plant breeder’s right lasts 25 years from the date of grant, or 30 years for crops designated by the Minister (Article 72 Seeds and Planting Materials Act 2005). It lapses earlier if the annual fee is not paid in time.
Who grants plant breeders’ rights in the Netherlands?
The Board for Plant Varieties (Raad voor plantenrassen) decides on applications for Dutch plant breeders’ rights, after a technical examination of distinctness, uniformity and stability (Articles 49 and 56 ZPW). EU-wide rights are granted by the EU Community Plant Variety Office.
What is the breeder’s exemption?
Anyone may use a protected variety to breed other varieties without the holder’s consent (Article 57(3)(c) ZPW). Commercialising the new variety is only free if it is not essentially derived from, or indistinguishable from, the protected variety (Article 58 ZPW).
Does a plant breeder’s right cover cut flowers and fruit?
Yes, if they were obtained from propagating material used without consent, unless the holder could reasonably have exercised his right over that propagating material (Article 57(4) ZPW). Products made directly from such harvested material can also be covered.
Which court hears plant breeders’ rights cases in the Netherlands?
The District Court of The Hague has exclusive jurisdiction in first instance for infringement claims, including summary proceedings, and for nullity actions. Appeals go to the Court of Appeal of The Hague (Article 78 ZPW).
Primary sources
Dutch statutes are only officially available in Dutch, on wetten.overheid.nl. The Benelux Convention on Intellectual Property (BCIP) is also published there in Dutch.
- Seeds and Planting Materials Act 2005 (Zaaizaad- en plantgoedwet 2005): Article 35, Article 49, Article 50, Article 51, Article 53, Article 54, Article 55, Article 56, Article 57, Article 58, Article 59, Article 60, Article 61, Article 62, Article 70, Article 71, Article 72, Article 74, Article 75, Article 78
- Dutch Code of Civil Procedure: Article 1019, Article 1019b, Article 1019h
