2011 CIOPORA Chronicle - the 50th Anniversary Edition

Belgium
The Belgian courts have recently
issued a number of interesting decisions
concerning PVR. The most
prominent, albeit intermediate, ruling
is probably the supreme court’s
recent decision to refer questions
about the exhaustion of CPVRs to
the CJEU 4 .
The court essentially wants to know
whether a PVR holder can accuse
any third party of PVR infringement,
when that party is effecting
reserved acts in respect of plant material
obtained from a licensee who
has violated the terms of his licence
agreement. In the specific case, the
licensee had not made the third
party sign an agreement allowing
it to grow and sell apple trees of
the licensed Nicoter variety, as was
required by the licence agreement.
Since the third party claimed not
to have been aware of this limitation
in the licence agreement, the
supreme court has also asked the
CJEU whether, for the assessment
of the infringement, it is relevant
that the accused third party is
aware or deemed to be aware of the
limitations imposed in the licensing
contract.
Another interesting Belgian
decision was the judgment by the
Ghent court of appeal concerning
Meilland International’s Meiptipier
rose variety 5 . A Belgian rose grower
had illegitimately reproduced a
number of roses which he had
received from a representative of
the PVR holder and was sued for
infringement.
The court dealt with a number of
hot topics. The court first confirmed
that infringement cases do
not necessarily have to be brought
before the court of Angers, where
the CPVO is located, as the court
had initially suggested.
Infringement actions can be
brought where the defendant is
domiciled or where the damage
occurred. The court’s decision
to subsequently qualify the roses
obtained from the unlawful
reproduction as harvested material,
is questionable since the roses are
primarily propagating material. In
case of doubt, preference should
always be given to a qualification as
propagating material as the protection
afforded to that material is
less stringent than that afforded to
harvested material 6 .
Finally, and most interestingly, the
court awarded double compensation
to Meilland. The court not
only took into account that the
plants had been reproduced without
consent, but also that, as a result of
this reproduction, the grower had
been able to commercialise the roses
resulting from this reproduction for
five years, i.e. almost throughout
the entire commercial life span of
the plant.
Merely equating the compensation
to the licence fee the grower would
have had to pay if he had obtained
Meilland’s consent, would have
been unequitable, the court found.
Germany
In the landmark decision Melanie 7 ,
the German Federal Supreme
Court (‘BGH’) held that whole
pot plants cannot be classified as
harvested material, but fall within
the definition of “variety constituents”
of the European regulation.
The BGH also held that the sale of
plants of a variety protected by German
PVR, which were illegally produced
in France, can be interdicted
by a German court. Finally, the
court clarified that any company
dealing with material potentially
protected by PVR has a duty to
ensure that the products sold do not
infringe third party rights.
In the Barbara decision 8 the BGH
allowed a DNA analysis as means
of presumptive evidence with
regard to the question of entitlement
to PVR. Furthermore, the
court held that a variety may be of
common knowledge even though
the breeder has decided to destroy
all material of that variety.
The Lemon Symphony judgment 9
of the BGH clarified that the scope
of protection of a CPVR does not
only cover identical infringements
but also an “area of tolerance”,
which comprises of natural variations
of the variety.
In a judgment 10 of the Higher
Regional Court of Dusseldorf
(‘OLG Dusseldorf’) on (alleged)
EDVs of Calibrachoa varieties, the
court held that the judge deciding
on an infringement claim, is strictly
bound by the combination of characteristics
laid down in the variety
description and may not consider
either one of them to be essential or
less important.
Philippe de Jong. >>>
CIOPORA Chronicle April 2011 | www.CIOPORA.org 15