Monday, December 7, 2015

Plant Breeders' Rights infringement case: Supreme Court of the Netherlands


On November 13th, 2015, the Supreme Court of the Netherlands ruled in favor of AIB (Anti Infringement Bureau) in a case of infringement of Plant Breeders' Rights (PBRs) by the company Novisem company. The Supreme Court set aside earlier order and sentenced the company Novisem to pay the court costs.  

Background of the case:
AIB is petitioner and Novisem is respondent in alleged infringement case. Novisem Company is engaged in development, production and sale of seeds of celery, chicory, gardening and pole beans. AIB represents major companies in the vegetable seed industry, has brought an infringement case against Novisem Company. This infringement case is related to three celery varieties known as Diamond, Brilliant, and Prinz.   It is to note here that the PBRs to all these three varieties are owned by two of AIB’s member companies, Nunhems B.V. and Bejo Zaden B.V.

Sequence of Actions:
1. An infringement cases filed and AIB requested the seizure for Novisem’s alleged infringement on Dutch Plant Variety Rights. On 18 March 2013 a seizure of evidence was carried out at the Novisem in Baarlo, the Netherlands, after court approval.

2. On 25th  April 2013, the Court issued its judgment in summary proceeding initiated against Novisem by AIB on behalf of Nunhems and Bejo. Court found no basis for plant variety rights infringement by Novisem and   rejected all of AIBs claims.  AIB contended, among other things, that the seizure showed that Novisem was unlawfully reproducing plants of the protected varieties for sale. Novisem defended that it was availing itself of the “breeder’s exemption” to plant variety protection, which permits a breeder to use protected varieties as the sources of initial variations to create new varieties of plants. AIB argued, however, that Novisem possessed significantly more plant material than was required for breeding purposes. Novisem presented to the court statements by its breeders, which contradicted AIB’s assertions. On this point and others, the court agreed with Novisem. The court ordered AIB to return to Novisem all of plant samples and copies of data seized from Novisem, and to pay Novisem €15,575, representing Novisem’s costs and counterclaim damages. The court also directed AIB to place a correction on its website.

3. AIB approached challenged this order in Supreme Court. On Nov 2015, Supreme Court did not favored Navisem in its decision and set aside earlier order by a court. Supreme Court ordered in favor of AIB and sentenced the company Novisem to pay the court costs.

Author's View: 
We don’t have more information related to submissions by the Petitioner and Respondent to express our views on the decision of Supreme Court. But, it may not be appropriate to express that it is almost clear that that Noveisem (respondent) have used provision(s) such as “Breeder’s Exemptions” to defend its position from alleged infringement charges.  Whereas, AIB (Petitioner) have submitted that that use by Novisem is beyond exemption’s purview and it clearly amounts to infringement.


Note: Sources of the above post are AIB’s post and blog post which are provided as link to this post.

Tuesday, December 1, 2015

“Imperial Blue” won ‪legal‬ battle over “Imperial Gold” Trademark


In 2010, an order passed by the Intellectual Property Appellate Board (IPAB‬), in, an application filed by the respondent (Pernod Richard S.A) under the Trade Marks Act, 1999 for removal of the petitioner's trade mark 'Rhizome's IMPERIAL‬ GOLD' registered under No.1161682 in class 33, from the Register of Trade‬ Marks. The IPAB allowed the application filed by the respondent and ordered for the removal of the said trade mark from the register.
In 2012, an order passed by a Division Bench of Madras High Court, allowed a ‪‎Writ‬ ‪‎Petition‬ and set aside the order passed by the IPAB.
Respondent filed an appeal to the Hon’ble Supreme Court. The Hon’ble Supreme Court by order dated 02.09.2014, allowed the appeal, set aside the order of division bench of Madras High Court and restored Writ Petition to the file Madras High court for fresh hearing and disposal.
As per the recent order dated Nov 2015, the Madras High Court has‪ UPHELD‬ Intellectual Property Appellate Board (IPAB) order for removal of trademark Rhizome’s Imperial Gold for whisky, owned by Andhra Pradesh-based Rhizome Distilleries, from the trademark registry.

Thursday, September 24, 2015

Normally Traded Commodities under Biodiversity Act- Reconsideration Indispensable

Ministry of Environment and Forest issued a Draft Gazette Notification seeking comments from the public and interested parties where they have enlisted 426 plant species /plant parts, the preamble of which reads as follows:"In exercise of the powers conferred by Section 40 of the Biological Diversity Act, 2002 (18 of 2003), and in supersession of the previous notification, the Central Government, in consultation with the National Biodiversity Authority, hereby declares that the provisions of this Act shall not apply to the following biological resources specified in column (3) of the table, provided they are traded as commodities and subject to terms enumerated in the explanatory notes as given below. The source of the biological resource (cultivated/wild) and the part being traded as commodity along with other details shall be declared by the trader/exporter as per a self-declaration form given in the annexure, a copy of which shall be submitted to the National Biodiversity Authority."

Here, I would like to quote Section 40 of the BD Act refers to NTC as under: “Notwithstanding anything contained in this Act, the Central Government may, in consultation with the NBA, by notification in its official gazette, declare that the provisions of the Act shall not apply to any items, including biological resources, as normally traded commodities”.

In the proposed list of MOEF; 426 biological resources/ their plant parts or whole plant; in cereals and Millets only grains and whole plants are included and exempted from the purview of National Biodiversity Authority in case of exports. Whereas, in case of Pulses, Oilseeds, Fibre Crops, Forage Crops (for some species) seeds are considered as Normally Traded Commodities.

I strongly feel NBA should review the draft for amendments the seeds of Cereals and Millets in the list of Normally Traded Commodities which would benefit Indian seed industry to operate international business in a conducive environment, I present my justification as below:
·         As per the Proceedings of the Meeting of Brainstorming Session and National Consultation on Issues related to Normally Traded Commodities On April 13 and 14, 2012 At Hotel Residency Towers, Chennai. “‘Normal trading’ means that it is traded in significant quantities, the level of significance will depend upon the type of commodity and should be defined in the proposed database”.
o   As evident in the data presented in Table 1 below, seeds of major cereals such as Rice and Maize are exported extensively i.e. considering an average of last four years 10144.38 ‘000 Kg of Rice and 19462.69 ‘000 Kg of Maize has been exported. Exports of Millets started recently and significant quantites have been exported in last two years, it is expected to gain pace in near future as per the trends and prevailing market situations.
o   As compared to the export data of seeds of those species which are considered for inclusion under the purview of Normally Traded Commodities in the Draft Notification by Ministry of environment, forests and climate change (Table 1 and 2); the quantites of seeds exported for Cereal and Millet seeds are significant  and at par.
o   As evident from the export value of major cereals and millets (Table 1.2); the share percentage of the overall exports and value of seeds export is at par with the exempted commodities.
Table 1. Yearwise quantity of Seed Export of Different Crops for last five years[1]:

SN
Crop
Crop Category
HC Code
Status of NTC received/ not as per Draft Notification by Ministry of environment, forests and climate change
Exported Quantity in Thousands (Kg)





2011-2012
2012-2013
2013-2014
2014-2015
2015-2016 (Till July 2015)
1.
Rice (Oryza sativa)
Cereal
10061010
Not NTC
9218.84
12975.78
10209.91
8173
2762
2.
Maize (Zea mays)
Cereal
10051000
Not NTC
18127.89
12384.43
24264.43
23,074
327.56
3.
Millet (Pennisetum glaucum)
Cereal
10082120
Not NTC
NA
NA
25535.76
19464
4496.96
4.
Cotton (Gossypium hirsutum)
Fibre
12072100 (other oil seeds and oleaginous fruits, whether or not broken)
NTC
NA
NA
547.19
552
149
5.
Sesamum (Sesamum indicum)
Oilseed
12074010
NTC
49526.38
39674.53
35817.63
36286.70
4251.84
6.
Mustard (Brassica juncea)
Oilseed
12075010
NTC
2814.01
2313.55
1184.03
1617.21
146.86


Table 2. Yearwise quantity of Seed Export of Different Crops for last three years[1]:
SN
Crop
Crop Category
HC Code
Status of NTC received/ not as per Draft Notification by Ministry of environment, forests and climate change
Value of Exported Commodities in INR Lakhs and Percentage share of India’s total exports





2012-2013
% share
2013-2014
% share
2014-2015
% share
1.
Rice (Oryza sativa)
Cereal
10061010
Not NTC
13129.24
0.0080
7272.31
0.0038
11284.65
0.0059
2.
Maize (Zea mays)
Cereal
10051000
Not NTC
8590.16
0.0053
17313.11
0.0091
17847.17
0.0094
3.
Millet (Pennisetum glaucum)
Cereal
10082120
Not NTC
-
-
5733.26
0.0030
4400.97
0.0023
4.
Cotton (Gossypium hirsutum)
Fibre
12072100 (other oil seeds and oleaginous fruits, whether or not broken)
NTC
-
-
154.14
0.0001
159.97
0.0001
5.
Sesamum (Sesamum indicum)
Oilseed
12074010
NTC
36646.87
0.0224
45904.04
0.0241
45148.95
0.0238

·         For export purposes; in case of seeds only the domesticated and widely cultivated species of major cereals and millets are utilized which are advanced hybrids/ varieties resulting from extensive research and deveopment and are commercially potential, bulk exports are not carried out for wild strains, land races, wild cultivars.
o   In ITC (HS), 2012 Schedule 2 – Export Policy, General Notes to Export Policy – Goods under Restrictions; In cereals only export of wild variety of wheat and paddy seed is restricted whereas Rice, Wheat and Maize (corn) of seed quality is free from any trade restrictions.
o   These species/ cultivars are also not covered under vulnerable, near threatened, endangered and critically endangered categories.
o   A considerable percentage of these seeds are exported for trialing and research purposes, this category also comprise of advanced research material.
o   Therefore, in case of exports of major cereals and millets there is no risk such as overexploitation of wild varieties/ land races/ local cultivars which could push these species to the category of endangerment or uninformed sharing of indegenous cultivars and associated traditional knowledge.
·         As per the Proceedings of the Meeting of Brainstorming Session and National Consultation on Issues related to Normally Traded Commodities On April 13 and 14, 2012 At Hotel Residency Towers, Chennai. In TECHNICAL SESSION-2, where characteristics of NTCs or NTACs are defined, referring to point number (g) which states “Endangered species may be excluded from the NTC definition; while exotics need to be treated as NTCs”.
o   Here, in case of Maize, it is believed to be originated from The South Mexican and Central American Centre whereas Pearlmillet from a defused belt stretching from western Sudan to Senegal Harlan (1971) and Harlan et al. (1975), India is only considered as the secondary centre of diversity (Brunken et. al., 1977).
o   Whereas, in case of Rice (Oryza sativa L.), the genetic diversity of various traits in local cultivars of rice is greatest in the area extending from Assam in India and Bangladesh to Myanmar and northern Thailand, and to Yunnan Province in China (Oka, 1988)[3]. Thus, rice also cannot be considered as solely indigenous as the origin is reported to be shared amongst many Asian countries. Thus, as per the aforementioned criteria seeds of major cereals and millet crop species can be included under the purview of NTC’s and prior approval from NBA for exports can be exempted.
·         Of more than 50 000 edible plant species in the world, just 15 crop plants provide 90 percent of the world's food energy intake, with three rice, maize and wheat - making up two-thirds of this. These three are the staples of over 4 000 million people. Rice feeds almost half of humanity.
o   Whereas, millets have been one of the important staples in the semi-arid tropics of Asia and Africa for centuries. These crops are still the principal sources of energy, protein, vitamins and minerals for millions of the poorest people in these regions. Millets are grown in harsh environments where other crops grow or yield poorly. They are grown with limited water resources and usually without application of any fertilizers or other inputs by a multitude of small-holder farmers in many countries. Therefore, and because they are mostly consumed by disadvantaged groups, they are often referred to as "coarse grain" or "poor people's crops". They are not usually traded in the international markets or even in local markets in many countries. The farmers seldom, therefore, have an assured market in the event of surplus production[4]. Upliftment of Millets in terms of research & development and trading is need of the hour. Considering the food security issues arising out of regulating these crop species, seeds of these crops should be allowed a free trade and should be provided the status of Normally Traded Commodities.


[1] Export Import Data Bank Version 7.2 Tradestat by Department of Commerce, Ministry of Commerce and Industry, Government of India
[2] Export Import Data Bank Version 7.2 Tradestat by Department of Commerce, Ministry of Commerce and Industry, Government of India
[3] CONSENSUS DOCUMENT ON THE BIOLOGY OF ORYZA SATIVA (RICE) (ENV/JM/MONO(99)26) Dated 06-Dec-1999, Series on Harmonization of Regulatory Oversight in Biotechnology No. 14 published by Organisation for Economic Co-operation and Development
[4] Dimensions of Need- An Atlas of Food and Agriculture, Agriculture and Consumer Protection, FAO Corporate Document Repository