Thu, Apr. 27, 2006

Plants Due Diligence

CB - Washington.   On February 14, 2006, the Supreme Court in Karlsruhe, Bundesgerichtshof, decided a conflict relating to the plant protection statute, Sortenschutzgesetz, of December 11, 1985, BGBl. I, p.2170, as amended on January 21, 2005, BGBl. I, p.146 et seq. The dispute involves the defendant`s importation of components for plants that violate plaintiff`s intellectual property in such plants which had been registered with the Bundessortenamt, the agency in Hannover charged with registering material covered by the statute.

The court upheld in the matter X ZR 93/04 the decision of the Karlsruhe court of appeals wich prevents the defendant from marketing plants named Melanie and Amethyst and awards damages to the plaintiff for the infringement of its rights. The defendant had purchased reproduction material from France and the Netherlands for use in Germany without verifying whether the product is registered there.

The court explained that a merchant trading in foreign products bears the burden of determining possible violations because there is the possibility that foreign vendor may not have determined the existence and extent of domestically registered rights. The domestic importer and reseller may not merely rely on the fact that a foreign vendor makes the material available for export sales, and the importer must perform some due diligence with respect to domestic intellectual property rights.

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