"Stealing branches" to cultivate unauthorized blueberry seedlings, the court ruled

China News Service, Beijing, October 14 (Reporter Gao Meng) As World Food Day is approaching on October 16, on the 14th, the Supreme People's Court issued a number of typical cases on the protection of new plant varieties. In one case, a planting base claimed to be "looking for connections to steal branches" to grow and sell an unauthorized variety of blueberry seedlings, and the court applied punitive damages to it.

The Supreme Court introduced that in this case, a Spanish plant limited company was the owner of the new plant variety right of the "Plablue 1542" blueberry variety. An agricultural company is the licensee of this variety in China and is authorized to defend its rights in its own name. A certain planting base was established on July 18, 2024. Its sales staff’s WeChat Moments and Douyin accounts have continued to promote and sell blueberry seedlings since July of the same year, showing a large number of seedling bases, bottle seedlings and seedling scenes. On July 30 of the same year, an agricultural company went to the planting base to purchase the allegedly infringing blueberry seedlings through notarization and evidence collection. A large number of blueberry seedlings were planted in the base, and its sales staff used "Spain 42" on site to refer to the accused infringing varieties. They stated that the blueberry seedlings they cultivated included "42" and many other varieties, with a total of 120,000 seedlings in a single batch. They also claimed that "the branches were stolen secretly through connections" and "42 were bottled seedlings taken from a company that was arranging for an agricultural company." Among the 120,000 blueberry seedlings, 20,000 were of the allegedly infringing variety, and another blueberry variety accounted for half of the total seedlings. A certain planting base failed to make a reasonable explanation or provide evidence for the legally permitted source of another variety. After testing, it was found that the allegedly infringing blueberry seedlings purchased by an agricultural company were very similar or the same variety as "Plablue 1542".

The Intermediate People's Court of Kunming City, Yunnan Province held in the first instance that a certain planting base knowingly produced, multiplied, sold, and promised to sell the allegedly infringing blueberry seedlings without a license had intentional infringement. In addition to producing and propagating the accused infringing blueberry variety, the planting base also produced another variety without permission and this variety accounted for half of the cultivated batches. Based on this, it can be inferred that more than 67% of the blueberry seedlings produced, multiplied and sold in a certain planting base are without legal authorization and are infringing seedlings, and should be deemed to be engaged in infringement of variety rights. The court of first instance applied punitive damages accordingly and ordered a certain planting base to compensate an agricultural company for economic losses totaling 144,000 yuan and reasonable rights protection expenses of 10,000 yuan. A certain planting base was dissatisfied and filed an appeal.

In the second instance, the Supreme People's Court held that a certain planting base knew that the "Spain 42" it sold was a variety authorized by others, but still produced, reproduced, sold, and promised to sell without permission, and had intentional infringement. In addition to the allegedly infringing blueberry variety, more than half of the blueberry varieties grown in a certain planting base account for more than half. Combined with the salesperson's statement about the source of branches and propagation materials, as well as the failure to provide reasonable explanation or evidence for the source, it can be determined that the above-mentioned blueberry seedlings were obtained through illegal means. At the beginning of its establishment, a certain planting base obtained blueberry propagation materials through illegal means for production and reproduction, and the majority of the blueberry varieties produced without permission should be determined to constitute "infringement as a business" and punitive damages should be applied according to law. Therefore, the second-instance judgment dismissed the appeal and upheld the original judgment.

The Supreme Court stated that this case is a typical case in which the People's Court equally protects the innovative achievements of Chinese and foreign breeders. This case refined the judicial determination standard of "taking infringement as a business". Based on the facts of the case that the infringing party has carried out infringing activities since its establishment, and the infringing varieties without legal authorization accounted for the majority of the seedlings produced and bred, it was determined that the infringing party was engaged in infringement as a business and punitive damages were applicable, and the crackdown on infringement at the source of seed breeding was intensified. (over)