Good faith no excuse for infringement of protected mandarin orange variety

French company Nadorcott Protection SARL owns the exclusive rights to the Nadorcott mandarin variety, which originated in Morocco.

The Spanish Supreme Court (“Tribunal Supremo”) recently referred a case to the EU Court of Justice (CJEU) concerning questions related to the interpretation of harvested material, provisional protection and exhaustion provisions of EU Regulation 2100/94 on Community Plant Variety Rights (“the Regulation”).

The case (C-176/18) concerns the (partly provisional) protection of the Nadorcott mandarin orange variety. In particular, the question whether the mandarins harvested from trees propagated and placed on the market without the rightful owner’s consent (prior to them being planted and further cultivated by a Spanish grower) amounted to an infringement of the Nadorcott Plant Variety Right, despite the fact that the unauthorized propagation and first sale took place before the grant of that right.

According to the International Community of Breeders of Asexually Reproduced Ornamental and Fruit Varieties (CIOPORA), this question should be answered in the affirmative.

CIOPORA regards this matter to be of high importance to its members as well as legal practitioners in Europe’s Plant Variety Protection sector, and the breeders’ association has prepared a detailed legal opinion providing its view on the questions referred to the CJEU by the Tribunal Supremo, which is available here.