Belgian court finds plant variety rights infringement

By Shawn Sullivan

Flemish plant grower Deroose Plants was convicted by the Ghent Commercial Court for infringement of the plant variety rights of its competitor Exotic Plant.

On December 3, 2012, a court in the city of Ghent, Belgium ruled that bromeliad ornamental plant varieties marketed under the names “Starlight” and “Catherine” were indistinguishable from a protected variety known as “Calypso,” and thus the marketing and sale of the Starlight and Catherine plants infringed the intellectual property rights of the Calypso variety owners. (Pieters v. NV Deroose Plants, No. A/09/03215 (Ghent Dec. 3, 2012)).

On behalf of their company, Exotic Plant, the claimants, Luc Pieters and Caroline De Meyer, obtained national plant variety rights certificates for the Calypso variety in Belgium in 1999, and in the Netherlands in 2000.

After discovering that the defendant, Deroose Plants, was selling plants that appeared to be identical to the Calypso variety, the claimants sued Deroose for plant variety rights infringement.

In finding no appreciable differences among the plants, the court relied to a significant degree on the findings of external experts.

Comparisons of DNA from the Calypso, Starlight, and Catherine plants conducted by the Agricultural Research Center of Ghent revealed them to be very genetically similar to one another.

In addition, the Centre for Genetic Resources in Wageningen grew samples of the defendant’s supposed varieties and found no relevant phenotypic differences between them and Calypso.

The court ordered Deroose to cease selling the infringing plants on the Belgian and Dutch markets. to destroy all remaining propagating material, and to pay provisional damages in excess of €100,000. The court appointed an expert to calculate any additional damages not covered by its order.

Finally, the court ordered that its judgment be published in two specialized journals of the claimants’ choice.

About the author

Shawn Sullivan
Shawn is general counsel to the International Life Sciences Institute (ILSI), ILSI Research Foundation, ILSI North America, and the ILSI Health and Environmental Sciences Institute. Based in Washington, D.C., he also runs a limited private practice in areas that include nonprofit law, negotiations, contract law, international business, technology transactions, and corporate law. Shawn may be contacted at sullivan[at]sullivanlaw.net.