CIOPORA
International Community of
Breeders of Asexually Reproduced
Ornamental and Fruit Tree Varieties
Regional Seminar on Enforcement
of Plant Variety Rights
Warsaw, Poland
11 and 12 May 2006
Enforcement of PBR
Do the legal enforcement
tools meet the needs of
the breeders?
Important questions
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Do right holders have access to premises of
the supposed infringer and can they take
samples?
Do they have the right to information?
What about the barriers to get a preliminary
injunction?
What about damages and punitive damages
Who pays the cost for the court procedures?
Which courts are competent for our cases?
Do the judges know what PBR are?
What about customs procedures?
Access to greenhouses and
samples
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Article 6 and 7 of the Enforcement Directive
deal with evidence and its preservation
Right holders must be granted access to
greenhouses to count and inspect plants
and collect samples
There is only a short period between an
infringement of a PBR (e.g. illegal
propagation) and the sales of the infringing
plants, thus fast provisional measures to
preserve evidence are necessary.
Right to information
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The trade with ornamental and fruit plants
is very international and so there are
widespread sources of propagating
material
Right holders must be able to get access to
information on the illegal sources of
propagating material and about the
recipients of illegal material, as it is
provided for in Articles 6 II and 8 of the
Enforcement Directive
Provisional measures
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The trade with ornamental and fruit plants
is a very fast business
Often huge intermediaries, providing
services and market space to the sellers,
are involved in the chain
Right holders must be able to stop alleged
infringements quickly on the spot of the
sellers or the intermediaries, as it is
provided for in Article 9 of the Enforcement
Directive
Damages
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Infringers weigh their profit against their
risk
The risk to be caught and the damages
payable must overweight the potential
profits
Damages must be deterrent to the infringer
and must make up for the losses of the
right holder
The Enforcement Directive does not
prevent the EC member states from
imposing punitive damages on an infringer
Legal costs
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Amounts in dispute in the ornamental and
fruit business are often low
Right holders should not suffer from high
legal costs when they win a case
There should be no “artificial” increases of
the costs
Article 14 of the Enforcement Directive has
to be interpreted in an IP-holder-friendly
way: There is no reason apparent that
equity not allows the infringer bearing all
the costs incurred
Criminal law
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Article 16 of the Enforcement Directive
allows the member states to apply other
appropriate sanctions than civil
sanctions in cases where intellectual
property rights have been infringed
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Infringement of Plant Breeders´ Rights
should be a criminal act as it is
comparable with theft, misappropriation
and fraud.
Specialised Courts
 The Enforcement Directive does not mention
the setting up of specialized courts
 In Latvia, Lithuania and Poland no courts
specialized on PBR exist, in Germany 11
courts of first instance exist
 Without specialized courts judges cannot
build up experience and expertise in PBR
matters
Customs procedures
Estonia, Latvia, Lithuania, Hungary, Poland,
Slovakia and Slovenia have borders to nonEC-member countries
 An increasing number of imports of
ornamentals and fruits cross these borders
 The national customs authorities need to
have sufficient knowledge on plants and
Plant Breeders´ Rights to be able to support
the breeders effectively
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Breeders´ responsibility
 Breeders are responsible to enforce their
rights
 They should see to it that they have proper
and valid rights
 Breeders should see that they have legal
advise to make use of the legal tools
available
 CIOPORA and its Anti-Infringement group
support breeders in their fight against PBRinfringments
Thank you
CIOPORA
Rothenbaumchaussee 78
D – 20148 Hamburg
GERMANY
Phone: +49 40 555 63 702
Fax:
+49 40 555 63 703
[email protected]
www.ciopora.org