Zespri cannot take a criminal action against the kiwifruit grower who allegedly sent plants of its SunGold and Gold9 varieties to China because the Plant Variety Act does not cover criminal proceedings.

And the chances of Zespri being able to shut down the Chinese orchards growing the kiwifruit appear to be slim because securing plant variety rights in other countries can be complex, expensive and politically sensitive.

Recently Zespri told growers it had uncovered the New Zealand kiwifruit grower who allegedly distributed Zespris SunGold and Gold9 varieties to Chinese growers in breach of the companys plant variety rights.

The Tauranga-based co-operative had cut the growers vines back to rootstock, cancelled their licences but had accepted their green crop for processing. It was now weighing up whether to take a civil case against the grower, although such cases are rare in New Zealand.

Dr Fiona Pringle, a senior associate at law firm Baldwins and a specialist in the area of intellectual property (IP), said there were no provisions in the Plant Variety Rights Act 1987 (PVR Act) for criminal proceedings in relation to breach of an owners rights.

It is believed the area covered by the illegal plantings is about 100 hectares. They were discovered last year and are believed to have been growing since 2012.