Valencian mandarins in Luxembourg squeeze

It's not often that the IPKat detects a plant varieties case on his radar, but one appeared as if by magic on the Curia website today: it's Case T‑95/06, Federación de Cooperativas Agrarias de la Comunidad Valenciana v Community Plant Variety Office (CPVO), Nador Cott Protection SARL intervening.

What was the story? The case turns on the legal capacity of the Federación (a federation of unions of farming cooperatives in the Spanish provinces of Alicante, Castellón and Valencia), which sought to set aside a decision of the Board of Appeal of the Community Plant Variety Office (CVPO).

Back in 1995, the breeder of the Nadorcott mandarin variety (discreetly referred to as "N") assigned his rights in that variety to an assignee, equally discreetly labelled "M". On the same day, M applied to the CPVO for the grant of a Community plant variety right in that variety. In March 1997 M assigned his rights in the Nadorcott mandarin to a company, Nador Cott (the intervener in these proceedings) and informed the CPVO accordingly. The CPVO finally granted a Community plant variety right in October 2004. In 11 February 2005 the Federación appealed to the CPVO Board of Appeal. It stated that the grant of this plant variety right was of direct and individual concern to it and explained that the plant variety right was invalid for lack of novelty and distinctive character. Nador Cott objected, both arguing that the Federación had no locus standi because, inter alia, it was not directly and individually concerned by the decision granting the right and submitting that the appeal was bound to fail on substantive grounds. The CPVO agreed that the appeal was inadmissible for want of locus standi and that the appeal should be dismissed on its substantive merits.

At the hearing of the Board of Appeal the Federación (i) argued that, pursuant to Article 49 of the implementing regulation, the Board of Appeal should have called upon it, before the hearing, to submit documents establishing that its members were directly and individually concerned by the decision granting the right and (ii) asked for time to return to Spain to assemble and produce complete documentation to that effect, or at least to be allowed to produce at the hearing the incomplete documentation to that effect which its representatives had brought with them. It stated that that documentation included documents empowering it to bring an appeal on behalf of individual mandarin growers and a contract between Geslive (the body responsible for the management and defence in Spain of Nador Cott's rights in the Nadorcott variety) and the Anecoop cooperative (a member of a union of cooperatives affiliated to the Federación) concerning payment by the latter of royalties for cultivation of Nadorcott. The Board of Appeal dismissed the Federación's appeal as inadmissible and rejected its application for leave to produce documents. The Federación then appealed to the Court of First Instance, which dismissed the appeal and awarded costs against the Federación.

The IPKat does not propose to go into the details of the reasoning, which are based on general principles of Community law and do not cast much light on the IP-specific bits of the dispute. He will however observe that, particularly where small businesses are concerned, the formation of bodies such as the Federación makes a lot of sense. This is not a case of global mega-corporations bonding together in order to protect their powerful market position through the increasingly transparent veil of the technical standard-setting cartel; this is a bunch of fruit-growers from a hot, dusty corner of the Iberian peninsula. While the position taken by the CVPO and the CFI may be technically correct as a legal proposition, we may wonder whether the interests of right holders and those who challenge those rights are not better served by the administrative convenience and economies of scale that representative actions can achieve.

Recipes for mandarin marmalade here and here
Mandarin as an aphrodisiac here
how cats miaou in Mandarin here