The Supreme People's Court recently concluded an appeal case involving an infringement dispute over new plant variety rights where the party claimed "one variety, multiple names". The Supreme Court in the second-instance judgment in this case held that for the same variety, the same name should be used when applying for new plant variety protection, variety approval, variety registration, and promotion and sale, and the parties involved must comply with the provisions of the Seed Law and relevant administrative regulations on the principle of "one variety, one name". Regardless of whether you apply for variety approval first or apply for new plant variety rights first, the same name should be used in subsequent stages to ensure that the characteristics of the variety are consistent with the standard sample, thereby preventing the occurrence of the phenomena "one variety, multiple names" or "multiple varieties, one name".
This case involves a new rice plant variety named "Liannuo No. 2" and a rice variety named "Fengnuo 1246" approved by Anhui Province. An Anhui company, the interested party in "Liannuo No. 2", filed a lawsuit with the court of first instance, claiming that "Liannuo No. 2" and "Fengnuo 1246" were the same variety, and that a Donghai company and an individual Sun infringed on its variety rights by selling “Wandao 68” rice seeds. It also submitted an inspection report in which site differences between the alleged infringing seeds and standard samples of "Fengnuo 1246" were not found.
The court of first instance held that the protected name of the "Fengnuo 1246" variety was "Liannuo No. 2" and its parent source was also "Liannuo No. 2", so the two were the same variety, and the alleged infringing seeds infringed upon the "Liannuo No. 2" variety. Accordingly, it decided that the Donghai company and Sun should bear liability for infringement. Dissatisfied with the decision, the Donghai company appealed to the Supreme People’s Court. In the second instance judgment, the Supreme Court change the first-instance judgement and rejected the Anhui company’s claims.
The Supreme People's Court held in the second instance judgment that:
First of all, in terms of the emergence time and subsequent use of the two variety names "Fengnuo 1246" and "Liannuo No. 2", "Fengnuo 1246" participated in regional trials for variety approval in 2013 and 2014, and obtained crop variety approval in Anhui Province in 2016, while “Liannuo No. 2” applied for variety right protection in 2015 and obtained the new plant variety right in 2019. From the fact that the parties concerned named and used the involved varieties as "Liannuo No. 2" and "Fengnuo 1246" respectively in different procedures and continued their operations under these names during subsequent stages, it can be inferred that "Liannuo No. 2" and "Fengnuo 1246" are not the same variety.
Secondly, based on the naming standards of new plant varieties, the name of the variety for which variety rights are applied for should comply with the regulations on naming new plant varieties, and should also be consistent with the name of the variety approved and registered. In this case, before the application for variety rights protection of "Liannuo No. 2" was filed, "Fengnuo 1246" had already existed, and there was no evidence to prove that the variety name "Liannuo No. 2" was changed to "Fengnuo 1246". Therefore, it is difficult to determine that "Liannuo No. 2" and "Fengnuo 1246" are the same variety.
Thirdly, the breeding subjects of the two varieties are not exactly the same.
Finally, although there is an explanation for the inconsistency in the variety names issued by relevant rights holders in this case, the evidence is essentially the variety rights holder’s own subjective understanding of “Fengnuo 1246” as “Liannuo No. 2”, and its probative force is limited. It cannot overturn the fact that "Liannuo No. 2" and "Fengnuo 1246" have been used respectively for a long time in new plant variety authorization and variety approval, and it is not sufficient to prove that "Fengnuo 1246" and "Liannuo No. 2" belong to the same variety. Moreover, in this case, despite the court’s clarification, the Anhui company still failed to provide supplementary evidence proving that "Liannuo No. 2" and "Fengnuo 1246" are the same variety. The existing evidence in this case provided by the Anhui company is insufficient to prove that the alleged infringing seeds are identical with "Liannuo No. 2", so the Anhui company should bear the adverse consequences of being unable to provide sufficient evidence. Therefore, the Supreme Court of the second instance changed the previous judgment as above.
The Supreme People's Court in the second-instance judgment emphasized that the name of a new plant variety possesses uniqueness and is an important external symbol that distinguishes the variety from other varieties. Although breeders can use different names to refer to selected varieties during the breeding process, it is legally required that for the same variety, the same name should be used in the applications for new plant variety protection, variety approval, variety registration, and promotion and sale. If the name of a granted new plant variety is different from the name of a variety which passes variety examination and obtains approval, it should be presumed that the two do not belong to the same variety. In a lawsuit for infringement of new plant variety rights, where the variety right holder claims that a new plant variety and an approved variety with different names belong to the same variety, the right holder should provide sufficient evidence to prove so.
The judgment in this case shows that seed producers and operators have the obligation to ensure the consistency of the same variety's name and the conformity between seed products and seed samples. In order to improve seed quality and promote agricultural development, it is necessary not only to protect new plant variety rights in accordance with laws and encourage breeding innovation, but also to regulate the seed market in accordance with laws and ensure the prosperity, stability and healthy development of the seed market.
-- (2022) Zui Gao Zhi Min Zhong No. 269
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