UK supermarket chain Asda is facing a plant breeders' rights (PBR) infringement lawsuit over the sale of its Tang Gold (also known as Tango) mandarin variety, which Nador Cott Protection SAS claims is derived from its protected Nadorcott variety. The case concerns the genetic relationship between the two citrus types and whether the sale of Tang Gold violates Nador Cott's intellectual property rights.
Nador Cott Protection SAS holds the PBR for Nadorcott, a mandarin orange variety developed through selective breeding. The company alleges that Tang Gold originates from Nadorcott and therefore constitutes an unauthorized derivative variety. Asda disputes the claim, arguing instead that Tang Gold is derived from W. Murcott, which it contends is distinct from Nadorcott.
However, High Court judge Mr Justice Mellor ruled that Asda could not argue that W. Murcott and Nadorcott are distinct, as the supermarket had not formally raised that issue in its pleadings. "To raise such an issue properly, Asda would have had to have set out the differences which supported a conclusion that those varieties were 'factually distinct'," the judge said.
The decision followed a preliminary hearing in the case Nador Cott Protection SAS v Asda Stores Limited, where Mellor noted that Asda had previously agreed in a joint statement of facts on 10 September that W. Murcott was renamed Nadorcott, implying that they are the same variety. "Anyone who had it in mind to plead that the two varieties were factually distinct would have immediately realised they would need to plead out the facts said to support that, i.e., the differences relied upon," Mellor added.
The judge concluded, "Overall, therefore, the contention that it was open, on the current pleadings, to Asda to run the argument that W. Murcott and Nadorcott are factually distinct varieties was, in my judgment, nothing more than wishful thinking. I emphasise that, my decision on this pleading issue aside, I retain an open mind on the allegations which are currently open on the pleadings. Those are matters for the trial."
The case, which will be heard in the Patents Court, is scheduled for a three to four-day trial beginning on 24 November. The outcome could have implications for the protection and commercialization of plant varieties in the UK citrus sector, particularly for breeders and suppliers managing intellectual property linked to mandarin cultivars.
Source: The Law Society Gazette
