2013 CIOPORA Chronicle

Managing PVRs
Sometimes you
have to be really
quick and rigid
when it comes to
enforcement of
PVRs. And then it
is helpful if the law
provides what you
need and the court
system is equipped
to do what the law
says.
by Tjeerd Overdijk
and Maarten Leune*
Hydrangeas in
a PVR squeeze
In times of economic downturn,
breeders around the world are
increasingly confronted with
growers who are not respecting
breeders’ rights (PVRs). We also
see an increase of bankruptcies of
licensed growers. And if there are
hardly any assets to be liquidated,
except a number of greenhouses
and/or fields with plants, trustees/
curators in a bankruptcy are not
always respectful towards PVRs,
which they tend to see as nasty obstacles
for maximising the proceeds
of a liquidation.
Hydrangea case
An example of the situation
described above is the Hydrangea
case that occurred in the Netherlands
in the autumn of 2012.
The Hydrangea Breeders’
Association (“HBA”) is a wellknown
Dutch breeder of a number
of Hydrangea varieties, such as
‘Bela’, ‘Red Beauty’, ‘Hot Red’
and a variety with trade mark
EARLY® BLUE . In the course of
2011, HBA was confronted with a
non-licensed grower M, who was
believed to have propagated a vast
number of Hydrangea varieties
without having any kind of license.
The illegal propagation had been
discovered through regular checks
and greenhouse/field visits made by
Royalty Administration International
(RAI).
After a civil seizure of illegal plants
RAI/HBA was able to reach a
settlement with M for the 2011
infringements.
Hard to identify
In the course of 2012, it appeared
that M had again undertaken acts
of illegal propagation. But M was
not cooperative and unwilling to
inform RAI about his activities,
the varieties, the locations and the
size of his operation. By tracing and
active inspection/investigation, RAI
discovered that M had plant material
at several locations in the area.
This time M’s principal had put up
a screen in the form of a new company,
Botensia B.V. Even without
paying royalties this company went
bankrupt in August 2012.
The trustee in the bankruptcy was
left with rented greenhouses and
fields with an enormous number
of Hydrangea cuttings, trays with
rooted cuttings, several sizes of
potted plants and mother plants. It
was late autumn and hard to identify
because the plants were returning
to hibernation and losing the colour
of their leaves. In a greenhouse in
‘s-Gravendeel, the Netherlands, there
were around one million Hydrangeas,
including approximately
260,000 cuttings and 240,000
half-grown HBA varieties, and at five
other locations were another million
Hydrangeas, including approximately
300,000 plants of HBA varieties.
Auction
In early October it turned out that
the trustee had hired a trading
company to arrange the sell off the
plants and this trading company
then arranged for an auction to be
held. It was clear that a large number
of illegal plants would be offered
for sale at the auction. The auction
was already open for online bidding
and the closing date of the auction
was October 16, 2012, 2 pm.
We then decided to write a cease
& desist letter to the trader and the
auction advising them that selling
HBA varieties at the auction would
constitute an infringement of several
PVRs of HBA. On Friday October
12 the trader responded that he was
unaware of any PVRs as the trustee
had never made mention of any.
The auction house referred the HBA
claims to the seller and preferred to
await instructions from the seller.
Precautionary measures
RAI/HBA went to the viewing day
in ‘s-Gravendeel on the following
Monday, October 15, to inspect
the plants that were being offered
at the auction. The auction house
added that it did not yet see a need
to cancel or suspend the auction in
order to have time to investigate the
claims of HBA. In the meantime,
the auction clock was ticking
until its closing time on Tuesday,
16 October, 2 pm.
We then decided that we could not
wait for the required cooperation of
the trader and the auction and that
we had to take some precautionary
measures. We were looking at
action to effectively prevent the
plants of the HBA varieties to be
sold at the auction.
At that moment there were
basically two options. Either we
could organise a civil seizure of the
infringing plants that were being
offered for sale at the auction;
meaning, however, that we had to
obtain permission from the court
to undertake the seizure and we
had to find a bailiff who would
be able to carry out the seizure.
A complicating factor here was
that the plants were simply being
offered as Hydrangeas without any
mention of variety names.
Another option was applying for
an ex parte court 1 order which
would prevent the selling of plant
materials that infringed the PVRs
of HBA.
We basically only had the Monday
to make the necessary arrangements
and you never know how long the
courts will need to give a ruling
on an application for provisional
measures. Given the short time left
we decided to walk both paths and
see which of the two would give the
first and the best opportunities. A
request for seizure had to be filed in
the District Court of Dordrecht.
36 www.FloraCultureInternational.com | CIOPORA Chronicle April 2013