Landmark fruit variety fight concludes in favour of Asda

A landmark UK court case concerning how plant breeders’ rights (PBR) affect fruit and vegetables sold by UK retailers has ruled in favour of Asda and its logistics subsidiary, IPL.

The High Court found that the national supermarket business had not infringed plant breeders’ rights relating to the sale of Tang Gold (Tango) mandarins in its stores, as claimed by Nador Cott Protection (NCP).

Mr Justice Mellor dismissed the infringement claim on the basis that the Tang Gold variety of mandarin “was not an essentially-derived variety” of NCP’s Nadorcott mandarin – while both are protected by UK plant breeders’ rights.

Appleyard Lees IP LLP, which acted for Asda and ILP – and represented in court by Anna Edwards-Stuart KC and Miruna Bercariu – demonstrated that the mandarin fruit variety sold didn’t possess the “essential characteristics” of NCP’s variety and was therefore not in breach of the Plant Varieties Act 1997.

Chris Hoole, Partner at Appleyard Lees, said: “This is an important and seminal decision on many levels for the retail and growers’ market – not least as it is, we believe, the first legal judgement affecting plant varieties in the UK.

“In finding against NCP, the court has given clear guidance on the correct interpretation of essentially-derived varieties under UK legislation. Through vigorous defence of NCP’s claim, Asda and IPL have stood up for consumer choice in mandarins and, potentially, the wider fruit and vegetable market.

Infringement proceedings against Eurosemillas S.A. – master licensee of Tang Gold – first launched by NCP in Spain in 2008 and relating to the mandarin variety’s propagating material – have yet to reach trial. Conversely, the UK trial was concluded in just over 12 months.

Graeme Morrison, Asda's Senior Legal Director, said: "Being able to provide our customers with the products and ranges they love is the reason we defended this case strongly, and we are happy that as a result of this ruling we can continue to do just that. This is a landmark case in the UK with repercussions across the wider sector and we are pleased with the outcome."

Appleyard Lees has acted for Asda as intellectual property counsel for decades and Hoole added: “Our long-standing and collaborative relationship with Asda has played a vital part in helping the company to secure the ruling in this landmark case.”

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Notes to editors:

About: Appleyard Lees is a leading intellectual property law firm with approximately eighty patent and trademark attorneys, specialised IP solicitors and litigators.

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