Brussels November 22nd 2012. Recently a panel of three judges in the Danish court of Viborg held that the company Knud Kristensen ApS (owned by Jens Kristensen and co-owner of the Danish export company Unipatatas A/S) has unlawfully imported seed potatoes of the variety Lady Rosetta into Denmark and multiplied those potatoes afterwards.
Reasoning and decision of the Court
In Denmark, seed potatoes of the variety Lady Rosetta enjoy variety protection according to the Danish Plant Variety Protection Act. According to the Act, material may only be used for commercial production or propagation and be sold or transferred subject to permission by the holder of the variety and only on the terms and conditions specified by the holder. It is undisputed that the Defendants have failed to obtain permission from the holder of the variety and that they have propagated and sold 130,200 kg. of the protected potato variety. The Defendants have therefore in general infringed the rights of the holder of the variety.
The Defendants argued that the right of the holder of the variety has been exhausted due to the seed potato only enjoying variety protection in Denmark, but not in Germany, where the Defendants claim to have acquired the seed potatoes. The Court, however, did not agree with the Defendants.
In the opinion of the Court it is clear that this infringement was intentional. The Plaintiff (Breeders Trust) is therefore entitled to reasonable remuneration for the exploitation, damages for additional harm caused by the infringement as well as compensation.
The court expressed that Knud Kristensen ApS and Lars Berg Christensen must acknowledge that they are not entitled to use material of the potato variety Lady Rosetta for commercial production of seed potatoes as well as sales thereof without the permission of the holder of the variety. They are prohibited from using material of the potato variety Lady Rosetta for commercial production of seed potatoes as well as sales thereof without the permission of the holder of the variety.
Amount of the compensation and fine
As a result the Court held that: the Defendants, Knud Kristensen ApS and Lars Berg Christensen must jointly and severally pay EUR 16,014.60 to the Plaintiff (Breeders Trust S.A.) plus interest. Besides that they must jointly and severally pay DKK 30,000 in legal costs to Breeders Trust.
Furthermore and in addition, Knud Kristensen ApS and Lars Berg Christensen have by way of the intentional infringement also incurred liability to be fined according to the Plant Variety Protection Act. Due to the scope and severity of the infringement, the penalty is set at DKK 30,000 to the Treasury. The Defendants have 4 weeks’ time to appeal this decision.
