Regional Seminar on Enforcement of Plant Variety Rights 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

Do the legal enforcement tools meet the needs of the breeders? Enforcement of PBR Do the legal enforcement tools meet the needs of the breeders?

Important questions 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 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 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 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 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 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 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 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 non-EC-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

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 PBR- infringments

Thank you CIOPORA Phone: +49 40 555 63 702 Rothenbaumchaussee 78 Fax: +49 40 555 63 703 D – 20148 Hamburg info@ciopora.org GERMANY www.ciopora.org