On January 12, the Angers, France, based Board of Appeal of the Community Plant Variety Office issued its long-awaited decision in the dispute concerning the novelty of Cripps Pink and Cripps Red apple varieties.
At the end of a complex and detailed legal analysis the board found the decision dismissing the petition lacked "detail and clarity" and was "not in line with the legal principles of good administration, legal certainty, and the requirement to state the reasons".
According to the board, the evidence put forward by Teak Enterprise Pty was able to demonstrate the unrestricted distribution of the cultivar to nurseries and growers by WAAA (Western Australian Agriculture Authority, now DPIRD) even under the Pink Lady and Sundowner names in Australia prior to the novelty bar date set by European Union plant breeding rights law.
Teak Enterprise is an Australian company holding PBR rights on Barnsby/PLBAR B1, a mutation of Cripps Pink enjoying independent PBR rights in many jurisdictions, including Australia.
President of Teak Enterprise Geoff Godley said “the Department in Australia never sought IP rights on Dr. John Cripps’ achievement. This is a well-known story in Australia”.
Teak was able to collect significant evidence including official documentation accessed from WAAA’s archives and an oath declaration signed in 2015 by the legendary Dr John Cripps (who died in May 2022), reporting details of the circumstances surrounding the dissemination of the varietal constituents to Australian commercial nurseries and growers.
Before Teak, the validity of the EU Cripps Pink was also challenged by Lynnell Brandt, the owner of the Pink Lady trademarks in the US and Mexico and president of Pink Lady America.
That case was dismissed by final Judgments of EU Courts, which did not find any convincing evidence of WAAA’s awareness or consent to the commercial exploitation of the varieties by the Australian fruit industry. 
However this time, the evidence put forward by Teak which also challenged the Cripps Red/Sundowner variety, could not be ignored or treated as it was in the earlier case.
The BoA decision, which also ordered the CPVO to pay all costs and fees, is still subject to appeal before the General Court. 
In any case, it will certainly have significant impact given the retroactive effects of the declarations of invalidity and it shall also set a precedent in future proceedings and novelty assessments by the CPVO.
Roberto Manno and his WebLegal Law Firm represented both Teak Enterprise PTY and Pink Lady America before the CPVO and the General Court of EU and is also in charge of other legal proceedings in respect to the Wild Pink trademark oppositions before the European Union Intellectual Property Office (EUIPO).
The Board of Appeal decision in respect to the Cripps Pink/Pink Lady and Cripps Red/Sundowner varieties can be accessed here:
https://www.weblegal.it/wp-content/uploads/2024/01/Board-Decision-of-12-January-2024_A019.2021and-A020.2021.pdf