Plant variety rights in the distribution chain
Under the system of plant breeders rights, also known as plant variety rights, the breeder of a new variety can obtain an exclusive right to perform certain acts with respect to material [1] of his protected variety. This exclusive right comes in the form of a certificate which is granted by a body mandated to do so,[2] provided that the variety meets the grant criteria laid down in the law. Upon grant of the certificate, and sometimes ever even before, only the breeder of the protected variety[3] is entitled to (re)produce material from the variety, condition it for the purpose of propagation, offer it for sale, sell it or otherwise put it to market, export it, import it, or stock it for any of these purposes. Subject to a number of exceptions and unless authorization from the breeder is obtained, these acts are thus reserved for the breeder of the protected variety. They are referred to as the ‘reserved acts’.
When a third party performs any of these reserved acts, he or she infringes the breeder’s plant variety right. If the infringer does not voluntarily stop performing his infringing activities, the breeder is entitled, amongst various other available remedies (such as claiming damages), to undertake legal action to have the infringement stopped by means of a permanent or interim injunction, possibly accompanied by additional measures such as customs detention, market recall or even destruction of the illegal plant material. Most often, action is undertaken against the person who has (re)produced material from the protected variety, but this is not necessarily always the case.
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