Judgment;Abstract — ECLI:EU:T:2024:128
Date: 2024-02-28
Language of the case: English
Court formation: Third Chamber
Subject matter: Intellectual, industrial and commercial property;Plant varieties
Procedure: Action for annulment - unfounded

summary of the observations made during the technical examination, is therefore not intended to reflect the expression of all the characteristics that result from the candidate variety’s genotype and which characterise it, such as the low lachrymatory factor and pyruvic acid asserted by the applicant, but only certain specific characteristics which suffice to demonstrate the distinctness of the variety. 38 According to the second indent of Article 5(2) of Regulation No 2100/94, read in conjunction with Article 7(1) of that regulation, it is sufficient that the variety be clearly distinguishable by at least one of the characteristics that result from its genotype for it to be protectable. Accordingly, even if a candidate variety displays certain identical characteristics to a variety of common knowledge, it is sufficient that it be clearly distinguishable by one or more other characteristics for it to be protectable. Therefore, even if the additional characteristic asserted by the applicant had been included during the technical examination and were set out in the official description of the variety SK20, that would not have had any bearing on the protection conferred on that variety since a new variety, displaying the same low lachrymatory factor and pyruvic acid, would still be protectable so long as it displayed one or more other characteristics clearly distinguishing it from the applicant’s variety. 39 Furthermore, inserting the additional characteristic asserted by the applicant into the description cannot procure any advantage for it because of the fact that Community plant variety rights concern the variety itself (see Article 5(1) of Regulation No 2100/94), which is taken to mean a plant grouping (see Article 5(2) of Regulation No 2100/94), consisting of entire plants or parts of plants as far as such parts are capable of producing entire plants, both referred to as ‘variety constituents’ (see Article 5(3) of Regulation No 2100/94). Under Article 13(1) and (2) of Regulation No 2100/94, a Community plant variety right has the effect that the holder thereof is exclusively entitled to effect certain acts in respect of variety constituents, defined in Article 5(3) of that regulation, or harvested material of the protected variety. It follows that the protection concerns the plant material itself, as defined by all the characteristics that result from its genotype, whether or not they are included in the official variety description. 40 Accordingly, inserting the additional characteristic asserted by the applicant into the description would in no way amend the scope of the protection granted for the variety SK20. Therefore, the Board of Appeal was right to find that the applicant had no interest in bringing proceedings. 41 That conclusion cannot be called into question by the decisions of the Bundesgerichtshof (Federal Court of Justice, Germany) relied on by the applicant, which, according to the latter, recognise that the extent to which a protected variety is protected depends on the characteristics included in the official description thereof. The Community plant variety rights regime is an autonomous system with its own set of objectives and rules peculiar to it which applies independently of any national system; the legality of the decisions of the Board of Appeal of the CPVO must be determined solely on the basis of Regulation No 2100/94 and Regulation No 874/2009 as interpreted by the EU judicature (see, by analogy, judgement of 6 June 2018, Apcoa Parking Holdings v EUIPO, C‑32/17 P, not published, EU:C:2018:396, paragraph 31 and the case-law cited). Accordingly, the EU judicature is not bound by a decision given in a Member State, even if such a decision was adopted under harmonised national legislation (see, by analogy, judgment of 27 February 2002, Streamserve v OHIM (STREAMSERVE), T‑106/00, EU:T:2002:43, paragraph 47). 42 Therefore, the first plea in law must be rejected as unfounded. The second plea in law, alleging infringement of Article 76 of Regulation No 2100/94 43 In the context of the second plea, the applicant claims, in essence, that, under Article 76 of Regulation No 2100/94, the CPVO was required to consider and examine the entirety of its request that the technical examination and the official variety description include an important additional characteristic. 44 The CPVO disputes that argument. 45 Given that, first, it follows from paragraphs 21 to 42 above that the Board of Appeal was fully entitled to dismiss the applicant’s appeal as inadmissible and, secondly, it was only for the sake of completeness that the Board of Appeal found that the appeal was also unfounded on the ground, in essence, that, in the present case, the President of the CPVO was under no obligation to implement the procedure provided for in Article 23 of Regulation No 874/2009, which empowers him to insert additional characteristics and their expressions in respect of a variety, the second plea is ineffective. 46 It follows from all the foregoing considerations that the action must be dismissed in its entirety. Costs 47 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 48 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the CPVO. On those grounds, THE GENERAL COURT (Third Chamber) hereby: 1. Dismisses the action; 2. Orders House Foods Group, Inc. to pay the costs. Schalin Nõmm Steinfatt Delivered in open court in Luxembourg on 28 February 2024. V. Di Bucci M. van der Woude Registrar President * Language of the case: English.