IP-Plant

Opinion of Advocate General Campos Sánchez-Bordona in Case C-625/15 P

 

Gert Würtenberger

 

On 18 January 2017 the Court of Justice of the European Union (CJEU) published an opinion of Advocate General Campos Sánchez-Bordona in Case C-625/15 P Schniga GmbH v Community Plant Variety Office (CPVO) with regard to an apple variety which had been applied for Union protection more than 17 years ago. In essence, the issue of this case relates to the scope of discretion of the CPVO’s President to include an additional characteristic in DUS examination, if it turns out in the course of the examination of a candidate variety that the same is clearly distinct from known varieties in a characteristic and that the characteristic is not mentioned in the list of characteristics in the technical protocol applicable for the technical examination of the candidate variety. (more…)

IP-Plant Anpassung einer Sortenbeschreibung

Amendment of a Community plant variety description

 

Gert Würtenberger

 

Whether a candidate variety meets the DUS requirements is examined in a technical examination according to Articles 55 and 56 of Council Regulation (EC) No. 2190/94 on Community Plant Variety Rights (CPVR).

 

If at the end of the technical examination the Office is of the opinion that the findings of the examination are sufficient to decide on the application and the DUS requirements are met, it shall grant the Community plant variety right. The decision shall include an official description of the variety (Article 62 CPVR). The plant variety description is part of the granting decision and thus represents an important element describing the object of protection.

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IP-Plant

Cancellation of a Community plant variety right

 

Gert Würtenberger

 

Although the grant of a Community plant variety right is based on an ex-officio examination, reasons may be given why the CPVO should not have granted protection. For this reason, Article 20 of Regulation (EC) No. 2100/94 (CPVR) provides rules for nullity of a Community plant variety right. Moreover, the right granted should only continue to exist if the variety fulfills after grant of protection the conditions “Uniformity” (Article 8 CPVR) and “Stability” (Article 9 CPVR). If the CPVR no longer complies with these requirements, the CPVO must cancel the right with effect in future according to Article 21 (para. CPVR).

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IP-Plant

Commission implementing Regulation (EU) 2016/1448 of 1 September 2016

 

Amendment of Council Regulation (EC) No. 874/2009 establishing Implementing Rules for the application of Council Regulation (EC) 2100/94 as regards proceedings before the Community Plant Variety Office

 

Gert Würtenberger

 

On 2 September 2016 certain amendments of the Rule for Procedure before the Community Plant Variety Office entered into force. The most significant changes are briefly summarized below.

 

Besides amendments which should increase efficient administration and clarity of the proceedings before the Office, one of the amendments refers to the language regime. It is now provided that the successor in title of a Community plant variety right may choose another official language of the European Union than the one that has been chosen by the applicant. Moreover, it is now provided that the Office or the Board of Appeal, with the agreement of all parties to the proceedings, should be able to use only one of the official languages of the European Union during those proceedings. So far, the Office or the Board of Appeal was obliged to translate all documents of the proceedings into the language of further parties that are involved therein besides the applicant.

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The object of protection of plant variety rights

 

Gert Würtenberger

 

What is to be protected by an industrial or intellectual property right largely depends on what the intention is in granting an exclusive right in a certain object. As regards inventions – in the context of this contribution this term relates to technical inventions as well as to improvements in plant breeding – the purpose is to foster progress by granting, for a limited period of time, the right to the creator to exclude others from using his achievements in order to allow the exploitation of the invention to the best possible extent in order not only to leverage the investments made in the invention but to induce further research.

 

Simultaneously, third parties should be induced to continue their efforts to find, or to invent, something new in light of the information obtained from the latest technical advances due to the publication of the invention. Finally, moreover, third parties must have the possibility to inform themselves on existing property rights and their scope by means of appropriate sources of information.

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ip-plant.eu

Judgment of the CJEU – C-226/15 P

Pink Lady vs English Pink

 

Gert Würtenberger

 

One of the presumably most successful apple breeding results is known in the market under the trademark “Pink Lady”. It is a protected apple variety (Cripps Pink) which has successfully conquered the apple market worldwide in the last decade. Quite understandably, the owners vigorously defend their existing registrations not only for the word mark “Pink Lady” but also the corresponding figurative Union trademarks 2 042 679 “Pink Lady” ,  4 186 169Union Trademark 4 186 169and  Union Trademark 6 335 591.

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Decision of the Regional Court of Düsseldorf - 18 May 2016

Decision of the Regional Court of Düsseldorf – 2a O 122/15

Trademark infringement

 

Gert Würtenberger

 

With its decision of 18 May 2016 in an action on trademark infringement the Regional Court of Düsseldorf (LG Düsseldorf) held that the trademark rights are not exhausted and thus infringed in a case where a trademark registered for plants has been used in further distribution for a different size of bundling of plants than laid down in the provisions of the license agreement. While the Claimant had given a trademark license to its licensee for the distribution of plants in a bundling of 5 plants, it had caught the Claimant’s attention that plants under the licensed trademark had been distributed to a commune in a bundling of 10 plants. Whether subject bundling of 10 plants originated from the licensed propagation or whether it also included plants derived from a non-licensed propagation could not be further investigated. It is not unusual in the subject industry to apply original labels to plants originating from a non-licensed production or on larger distribution packages, constituting a mixture of licensed and non-licensed products in order to pretend that the distributed goods are all legally propagated plants.

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