Infringement of a plant variety : the strawberry-plant : "Mara des Bois"
26.09.2002
Group M., nurserygardener breeder is the owner of a new plant variety certificate for a variety of strawberry-plant named "Mara des Bois".
The factsGroup M., nurserygardener breeder is the owner of a new plant variety certificate for a variety of strawberry-plant named "Mara des Bois".It has observed that Group G. produced and commercialized "Mara des Bois" strawberry-plants. It has conducted an infringement-seizure according to Article **3** of the French law.First Instance Court of Paris - October 29, 1999InfringementFor the strawberry-plants, the right of the breeder provides on all or part of the plant that may be used as material for the propagation of the variety.Therefore, it has been looked for if Group G. resold legally bought plants or if it produced or sold plants issued from illicit propagation.The proves obtained by the infringement-seizure showed that the number of sold plants is much more higher than the number of plants bought to a supplier.Group G. has not shown the origin of the plants of the variety "Mara des Bois" it commercialized. It has not established that they were plants directly or indirectly bought to Group M. which has, according to Article **1** the exclusive right to produce, sell or offer for sale all or part of the plant to be used as material for the propagation of the variety.Group G. is therefore counterfeiter.Unfair competition : identification of the varietyThe strawberry-plants commercialized by Group G. were named under "Strawberry-plants Mar. SP. Godets" and not under the denomination of the plant variety certificate "Mara des Bois" according to Article **2**.When it does not identify the sold variety, Group G. maintains a confusion with the buyers, even professional ones. Furthermore, as the sale was done at a lower price than the one of Group M., the buyers may thought that a new variety exists, which is comparable to the variety "Mara des Bois".Enacting termsThe sale of more than 64 000 plants at 0.11 EUR (0.75 French Franc) each is corrected by :- 10 671.43 EUR (70 000 FRF) of damages ;- publication of the decision ;- 2 286.74 EUR (15 000 French Francs) based on Article 700 NCPC ;- measures of prohibition.Group G. has appealed of this decision.Court of Appael of Paris - January 23, 2002Group G. has tried to prove that the plants "Mara des Bois" were in fact obtained in exchange for plants of variety "Gento gariguette".The furnished testimonial was not considered pertinent.Enacting termsThe Court of Appeal has increased the amount of damages to 45 734.71 EUR (300 000 FRF). Indeed it has considered that the violation of the rights was real as it is on a high range variety, particularly appreciated for its gastronomic and gustative qualities and that it was accompanied by established unfair competition acts.
