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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European Union Plant Variety Protection - Gert Würtenberger, Paul van der Kooij, Bart Kiewiet, Martin Ekvad

New Book – European Union Plant Variety Protection – Second Edition

 

Gert Würtenberger, Martin Ekvad, Paul van der Kooij, Bart Kiewiet

For more information visit OUP – Oxford University Press website
 

Description

 

This book is an invaluable and practical guide to the European Community plant variety protection system under Council Regulation (EC) 2100/94 and how it enables European breeders to protect new varieties of plants with a tailor-made intellectual property right. It combines a comprehensive explanation of the system with clear guidance on the law in practice, including how to obtain plant variety protection and how to enforce rights to that protection. It analyses the interrelation of plant variety rights with other IP rights, and provides guidance on the appropriate form of protection, considering the strengths and weaknesses of the system. The book also features time-saving references for further information on national, Community and international plant variety protection and enforcement.

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IP-Plant

Decision of the CJEU- C-534/10 P – Brookfield New Zealand Ltd. and Elaris SNC vs. Community Plant Variety Office and Schniga GmbH

 

JUDGEMENT REVIEW

 

by  Gert Würtenberger

 

Legal Context

 

New plant breeding results may be granted Community plant variety right if the variety is distinct, uniform, stable and new. Whether the first three criteria “Distinctness”, “Uniformity” and “Stability” (the so called DUS requirements) are given, is examined by the Community Plant Variety Office (CPVO) by means of a technical examination according to Art. 55 of Council Regulation (EC) No. 2100/94 on Community Plant Variety Rights. Once the Office has reached the conclusion that an application fulfils the formal requirements, it will arrange for a technical examination by an Examination Office appointed by the CPVO. Examination Offices are usually either national authorities which examine whether national applications fulfil the requirements for grant of a national plant variety right or other institutions competent to examine whether a new variety fulfils the DUS requirements.

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