Celebrated Johannesburg horticulturist Keith Kirsten has lost the European plant rights to one of his most famous plants, canna tropicanna.
The president of the European Union Community Plant Variety Office announced recently they had decided to declare Kirsten's right to the canna null and void in spite of his claims to have discovered the plant.
The canna tropicanna has orange flowers and maroon-striped leaves.
"Making an unknown plant into a famous one is not development, it is marketing," the office said in its decision.
'Making an unknown plant into a famous one is not development, it is marketing' The judgment, which can still be challenged on appeal, came as Keith Kirsten International announced that in the past three years they had sold more than 239 000 canna tropicanna plants worldwide and over 20 000 in South Africa in one season.
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The plant has won several awards.
Kirsten holds the plant rights to the specific canna in South Africa, Australia, Japan, New Zealand and the United States and receives about R2 in royalties for every plant sold.
The challenge that led to the decision by the office was brought by British nursery owner Keith Hayward. He claimed canna tropicanna was neither a new plant nor discovered, changed or developed by Kirsten - any of which would have entitled him to the plant's rights.
According to Hayward, canna tropicanna was introduced to the United Kingdom by two nurserymen whose plants were descended from those taken from a Zimbabwean garden and replanted in Johannesburg.
The office found that Kirsten was not the first person nor the first expert to observe the variety of canna in question.
In fact, said the judgment, Bethel nurseryman and botanical expert Theunie Kruger had pointed out the canna tropicanna to Kirsten.
Kirsten said he would appeal against the EU body's "shock" ruling.
Last year Mr Justice Siraj Desai made legal history by enforcing plant rights on Kirsten's behalf for the first time.
Kirsten won his ground-breaking case, and Weltevrede Nursery in Stellenbosch was ordered to pay R10 000 in damages for shipping canna tropicanna rhysomes to Belgium without Kirsten's permission.
Weltevrede then appealed against Judge Desai's decision. The appeal was heard on Tuesday by the Supreme Court of Appeal. Judgment was reserved.
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This article was originally published on page 3 of The Star on November 12, 2003
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