Looking after the intellectual property

August 15 2014

“The issue of branding and marketing fruit has increased greatly in recent years as some of our horticultural industries have developed. As an example, the apple industry has come a long way in the last 20 years or so when the bulk of our apple exports were made up of two or three varieties, sold through one marketer (the old ENZA) and pretty much under one brand. The number and variety of apples now available, both in New Zealand and exported, has increased dramatically as are the countries into which those apples are now exported.”

Branding and marketing is all about control of the intellectual property and how that intellectual property is used. There are often different parties who have an interest in the intellectual property of a particular idea or item.

Using the apple example above, typically, the owner of the plant variety rights might sub-licence those rights to another person or entity who will bring the apples to market. That person might have trademarked a name and/or logo under which the apples are to be marketed and will want to ensure that their rights to do that are protected, so that they can maximise the revenue stream from their marketing.

  • Therefore the contractual arrangements around the various aspects of intellectual property that go into introducing new varieties, propagating and ultimately selling the apples become critical. This is particularly so, as the fruit will almost certainly be propagated and grown on a number of different orchards, and these orchards may be leased by the fruit company doing the marketing and selling of the apples, or the apples may be grown by orchard owners who enter into contracts or licences with the owner of the brand. A number of factors need to be taken into account in these contractual arrangements. These arrangements will include:
  • An acknowledgement of the respective ownership/licensed rights to the intellectual property and the fruit (and any improvements or developments to the fruit)
  • Provision for the payment of royalties
  • A measure of control over the horticultural practices involved in propagating and growing the fruit prior to picking to ensure that standards are maintained
  • Control over the packing process, and
  • In the lease situation, dealing with ownership of the trees and the fruit produced from those trees, and the ability of the tenant to remove the trees at the end of the term.
  • The different entities that will be involved in this contractual scenario might include:
  • The owner of the Plant Variety Rights – the developer of the fruit
  • The nursery that propagates the plant material
  • The landowner who may not be the grower
  • The grower/packhouse
  • The owner of the brand – the marketer
  • The exporter, and
  • The overseas agent or distributor.

Ensuring your intellectual property rights are protected is crucial. Working out your priorities and working with your professional advisers will help ensure the best results for your crop.

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