Enforcement of Plant Breeders’ Rights on illegal import of cut flowers under the EU anti-piracy regulation Christchurch (NZ) 24 May 2007 HIDDE J. KOENRAAD.

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Presentation transcript:

Enforcement of Plant Breeders’ Rights on illegal import of cut flowers under the EU anti-piracy regulation Christchurch (NZ) 24 May 2007 HIDDE J. KOENRAAD

Introduction case study: illegal imports of Gerbera cut flowers into the Netherlands and Belgium company involved: Gerbera & Anthurium cut flower and potplant culture -Appr. 30 Israeli growers, appr. 27 national and Community PVRs -objective: written license/royalty agreements -actions in Israël, The Netherlands and Belgium

Anti-Piracy Regulation Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights

Application for customs actions: certificates of registration PVRs technical description and photos of cut flowers particulars identifying the flower boxes intended destination(s) of the plant materials means of transport / possible arrival dates identity of the importers, exporter and growers

Customs actions in the Netherlands and Belgium direct contact with customs authorities i nspection and analysis of intercepted goods suspension of release and detainment perishable goods: very short time limits! cease and desist letters and statements (translations!) threat of destruction/degeneration of infringing flowers

Simplified procedure for destruction EU Anti-Piracy Regulation: -destruction of detained suspected plant materials -statement that plant materials are infringing PVRs by rightholder -consent of alleged infringer, or if no (timely) reaction to demand letter: presumed consent by alleged infringer In the Netherlands: -release of intercepted flowers after signing license agreement possible -simplified procedure for destruction without court case possible In Belgium: -no release of flowers after signing license agreement -initiating legal procedure mandatory (?)

Practical/ legal difficulties - short terms: thorough preparation is essential! - identification of plant materials: use of experts and circumstantial evidence; - initiating legal proceedings in Belgium mandatory? - interpretation of Article 12 AP-Regulation: use of particulars cited in Article 9(3); - cut flowers = ´harvested material´.

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