2011 CIOPORA Chronicle - the 50th Anniversary Edition

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Die Unternehmer-Anwälte We make your rights bloom. IP Protection for Plant Innovations Contact Thomas Leidereiter Luther Rechtsanwaltsgesellschaft mbH Gaensemarkt 45, 20354 Hamburg Telephone +49 40 18067 0 thomas.leidereiter@luther-lawfirm.com www.luther-lawfirm.com PASSION FOR IP © Rose breeding is our profession since 1906 PBR’s and trademarks are our safety belts. THE SUPPORT for our honest clients & growers. This position we share with our agents and friends worldwide. Rosen Tantau Colombia gsamper@rosentantau.com Rosen Tantau Ecuador rosent@accessinter.net Rosen Tantau Int., Dubai tantau@alissarflowers.com Rosen Tantau Italy vivaivillatella@rosenet.it Van Kleef Roses, NL & East Africa roses@vankleef.nl Flora Brasiliae, Brazil florabra@nol.com.br CHC, China nicp@chcbiz.com Keisei Rose, Japan tazama@keiseirose.co.jp OS - Int., USA osintl@w-link.net Aceagro, India info@aceagro.com GW 11/09 HilverdaKooij your supplier of young plants CONTACT Philippe de Jong Tour & Taxis Building Havenaan 86C B414 Avenue du Port 1000 Brussels - BELGIUM T + 32 2 426 14 14 - F + 32 2 426 20 30 philippe.dejong@altius.com www.altius.com Tornescher Weg 13 · 25436 Uetersen Tel.: +49 (0) 41 22 / 70 84 · Fax: 70 87 email: tantau@rosen-tantau.com Internet: www.rosen-tantau.com www.hilverdakooij.nl member of
Jurisdictions Furthermore, the court decided that a high degree of phenotypic similarity does not indicate the presence of an EDV, but that the presence of an EDV may only be assessed on the basis of a DNA and a phenotypic comparison. However, in a very recent decision 11 , the Regional Court of Mannheim has based a decision on the presence of an EDV of a winter wheat (Triticum aestivum L.) variety (CPVR) to some extent on the fact that a high degree of phenotypic similarity between the varieties was observed. The Netherlands In The Netherlands, the first ever case on essentially derived varieties under the Community PVR Regulation was settled by a judgment from the court of appeal of The Hague of 29 December 2009 12 . The facts of this case are now wellknown to most of the PVR-loving world. The question was whether Astée’s ‘Blancanieves’ and ‘Summer Snow’ Gypsophila varieties were essentially derived from Danziger’s Dangypmini variety, also known as ‘Million Stars’. To substantiate its claim, Danziger submitted a AFLP fingerprinting report which found that there was a high correlation between the varieties involved (more than 0.9 on the Jaccard scale) and that the existing genotypical differences were too minute to have been obtained through cross-breeding and selection. The court rejected the infringement claim against ‘Summer Snow’ for due to lack of evidence. Regarding ‘Blancanieves’, it appeared that there were 17 morphological differences with ‘Million Stars’. According to the court, this finding led to the conclusion that ‘Blancanieves’ could not be essentially derived from ‘Million Stars’. In addition to the requirements that a variety can only be essentially derived from another variety if it is (i) predominantly derived from the initial variety and (ii) is distinct from that variety, there is the requirement that (iii) the derived variety has to essentially conform to the initial variety in terms of the expression of characteristics resulting from the genotype or combination of genotypes of the initial variety. With 17 morphological differences, the two varieties could not be considered phenotypically similar to such a high degree that the one variety differs from the other variety only in one or a few inheritable characteristics, as required by the UPOV Travaux Préparatoires. In another interesting decision concerning the Sperien and Spekren rose varieties, the district court of The Hague held that bad faith is not required to claim damages under the Community PVR Regulation. More specifically, it was held that damages in the sum of a customary royalty of 30cent/ cutting amounted to a “reasonable compensation” under Article 94(1) of the Regulation 13 . ||| * Philippe de Jong works as a lawyer for Altius in Brussels (www.altius.eu). Thomas Leidereiter is a lawyer working for Luther in Hamburg (www.luther-lawfirm.com). 1 CJEU, Judgment of 15 April 2010, case number C-38/09 P 2 GCEU, Judgment of 19 November 2008, case Number T-187/06 – Schräder v. CPVO. For a commentary on this decision (in Dutch), see P. de JONG, “Van Pretoria tot Meise: de algemene bekendheid van het referentieras”, I.R.D.I. 2008, p. 432. 3 GCEU, Judgment of 13 September 2010, case number T-135/08 – Schniga v. CPVO 4 Cour de Cassation / Hof van Cassatie, 25 February 2010, case nr. C.08.0474.N/1. The case is known at the CJEU under number C-140/10. See the similar discussion in Pres. The Hague district court, 4 November 2005, I.E.R. 2006, p. 97, with comment T. OVERDIJK. 5 Ghent court of appeal, 13 October 2008, ICIP-Ing. Cons. 2008, p. 837, with comment from P. de JONG, “Dien inbreuk en die roze”. 6 See also the decision from the German Federal Supreme Court in Melanie, discussed below. 7 German Federal Supreme Court, Judgment of 14 February 2006, file number X ZR 93/04 – Melanie 8 German Federal Supreme Court, Judgment of 29 June 2004, file number X ZR 203/01 - Barbara 9 German Federal Supreme Court, Judgment of 23 April 2009, file number Xa ZR 14/07 – Lemon Symphony 10 Higher Regional Court of Dusseldorf, Judgment of 6 April 2006, file number I2 U 155/02 11 Regional Court of Mannheim, Judgment of 10 December 2010, file number 7 O 442/04 12 The Hague court of appeal, 29 December 2009, IER 2010, 361. 13 The Hague district court, 9 January 2008, BIE 2008, 328; see also in the same sense: The Hague district court, 27 February 2008, BIE 2008, 445 (Miss Lucy). CIOPORA Chronicle April 2011 | www.CIOPORA.org 17
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