{"id":82941,"date":"2021-10-19T03:00:58","date_gmt":"2021-10-19T01:00:58","guid":{"rendered":"https:\/\/www.cde.ual.es\/?p=82941"},"modified":"2021-10-18T14:17:47","modified_gmt":"2021-10-18T12:17:47","slug":"the-cjeu-upholds-a-murcian-farmers-claim-against-the-king-of-morocco-for-a-mandarin-variety","status":"publish","type":"post","link":"https:\/\/www.cde.ual.es\/en\/the-cjeu-upholds-a-murcian-farmers-claim-against-the-king-of-morocco-for-a-mandarin-variety\/","title":{"rendered":"The CJEU upholds a Murcian farmer’s claim against the King of Morocco for a mandarin variety"},"content":{"rendered":"

The European Court of Justice ruled last Thursday in favor of Jos\u00e9 C\u00e1novas Pardo, S.L., a farmer from Murcia who exploits a protected mandarin variety whose property rights belong to the King of Morocco since 2004.<\/strong><\/p>\n

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Following an application lodged by Nadorcott Protection SARL on 22\u00a0August 1995 with the Community Plant Variety Office (\u2018the CPVO\u2019), the CPVO granted it a Community plant variety right in respect of the Nadorcott variety of mandarin tree on 4\u00a0October 2004. An appeal with suspensive effect was brought against that decision before the Board of Appeal of the CPVO but was dismissed by a decision of 8\u00a0November 2005 published in the Official Gazette of the CPVO on 15\u00a0February 2006.<\/p>\n

Since 2006, Pardo has cultivated a grove of 4\u00a0457 mandarin trees of the Nadorcott variety.<\/p>\n

Geslive, on whom the management of the rights over the Nadorcott variety had been conferred, sent Pardo formal notice on 30\u00a0October 2007 demanding that, in the absence of the appropriate licence, it cease the cultivation of that plant variety.<\/p>\n

On 30\u00a0March 2011, CVVP, to whom the management of those rights had been transferred with effect from 13\u00a0December 2008, sent Pardo a new letter demanding that, if it were cultivating some 5\u00a0000 mandarin trees of the Nadorcott variety, it cease that activity.<\/p>\n

Having applied in November 2011 to the Juzgado de lo Mercantil (Commercial Court, Spain) for preliminary measures for a declaration of infringement of the exclusive rights over the Nadorcott variety, CVVP brought two actions against Pardo, one for \u2018provisional protection\u2019 in respect of the acts of Pardo prior to the grant of those rights, that is, before 15\u00a0February 2006, the other for infringement in respect of acts after that date. In particular, CVVP sought a declaration of infringement of the exclusive rights over the Nadorcott variety from 15\u00a0February 2006 until the cessation of cultivation. CVVP also applied for an injunction that Pardo be ordered to bring its unlawful cultivation to an end, to remove and, if necessary, destroy any plant material of that variety in Pardo\u2019s possession, and to pay it compensation in respect of such cultivation.<\/p>\n

Having found that a period of time of more than three years had elapsed between the date on which the holder of the rights over the Nadorcott variety had identified Pardo as an unlawful cultivator of that variety, that is, at the latest by 30\u00a0October 2007, when Geslive gave formal notice to Pardo, and the date on which CVVP brought its action in November 2011, that court of first instance dismissed the action on the ground that the action for infringement was time barred under Article\u00a096 of Regulation No\u00a02100\/94.<\/p>\n

Following CVVP\u2019s appeal against that decision, the Audiencia Provincial de Murcia (Provincial Court of Murcia, Spain) found that Pardo did not dispute either the cultivation of the trees of the Nadorcott variety or the lack of consent of the holder of the rights in that variety. That court decided that Pardo\u2019s operations resulted in certain acts of infringement which were of an ongoing nature since the trees at issue were continuing to be cultivated. In addition, it held that Article\u00a096 of Regulation No\u00a02100\/94 should be interpreted as meaning that the claims relating to those acts of infringement which took place less than three years before CVVP\u2019s action was brought were not time barred but that those relating to acts of infringement which took place more than three years before the claims had been brought were time barred.<\/p>\n

Accordingly, Pardo was ordered to pay EUR\u00a031\u00a0199 for its acts of infringement and as appropriate compensation for acts performed without the consent of the holder of the Community plant variety right during the period of its provisional protection. In addition, Pardo was ordered to cease all acts of infringement.<\/p>\n

Pardo brought an appeal on a point of law before the referring court, the Tribunal Supremo (Supreme Court, Spain) against that decision of the Audiencia Provincial de Murcia (Provincial Court of Murcia), challenging the latter\u2019s interpretation of Article\u00a096 of Regulation No\u00a02100\/94.<\/p>\n

The referring court states that, according to the national case-law on matters of intellectual property, occasional acts of infringement must be distinguished from ongoing acts. In the case of the latter, the period of prescription is extended for as long as the act of infringement continues. That court asks whether such case-law can be applied to the rules on prescription set out in Article\u00a096 of Regulation No\u00a02100\/94 and, in particular, whether all claims relating to acts of infringement are time barred on the ground that the holder of the Community plant variety right brought his or her action more than three years after becoming aware of those acts of infringement and of the identity of the party liable for them or if only those claims relating to acts of infringement which took place more than three years before the action was brought are time barred.<\/p>\n

The CJEU determines that:<\/strong><\/p>\n