Court clarifies plant variety exhaustion
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Court clarifies plant variety exhaustion

The owner of a plant variety right can bring an infringement action against a third party that has obtained material from a licensee, if the licensee has contravened the licence “to the extent that the conditions or limitations in question relate directly to the essential features of the Community plant variety right concerned”

This is the case even if the third party was aware or was deemed to be aware of the conditions or limitations imposed in the licence, the Court of Justice of the EU has judged.

The Court was ruling in a dispute brought by Greenstar-Kanzi Europe, which had acquired the exclusive right to the plant variety for Nicoter apple trees, against Jean Hustin and Jo Goossens.

They had bought 7,000 Nicoter trees from a company called Nicolaï, which had a licence to the plant variety right.

When the lower courts in Belgium diverged over whether or not Hustin and Goossens were bound by the contractual restrictions imposed on Nicolaï, the Court of Cassation referred two questions to the Court of Justice of the EU.

Plant varieties are protected in the EU by Regulation 2100/94 on Community plant variety rights, amended by Regulation 873/2004.

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