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South Africa: Landmark case on citrus plant varieties protected with Plant Breeder’s Rights

The interdict application brought by Nador Cott Protection (NCP) & CitroGold against Eurosemillas, StarGrow and others will be argued on 26 February 2015.

The NCP are the owners of the Nadorcott mandarin citrus variety, registered with Plant Breeder’s Rights in South Africa since 2004. The NCP and their agents in South Africa, Citrogold, claim that the Respondents in this matter are infringing their Plant Breeders Rights by planting a citrus mandarin variety which they call the Tango. The NCP and Citrogold intend to show that the Tango is a ‘copy’ of the Nadorcott or at least essentially derived from the Nadorcott and that the Tango is unlawfully competing with the Nadorcott in South Africa.

The Nadorcott is very popular amongst consumers in South Africa and the European Union and is one of the most successful citrus varieties in the world. The Nadorcott is also known to consumers in South Africa as ClemenGold™, Sweet C™ and other brand names. The farmers who have invested in planting the Nadorcott are earning a good return. From a consumer’s point of view, the fruit has an excellent dark orange colour, is easy peeling, tastes delicious and has no or very few seeds. It also comes onto the market when no other appealing mandarins are available and ships well to export markets with little wastage.

It is the position of NCP and Citrogold that the Tango is the same as the Nadorcott or alternatively, that the Tango variety exhibits predominantly the features of then Nadorcott, in which case it is essentially derived from the Nadorcott variety. Only when grown under certain conditions, Nadorcott may produce some seedy fruit, but in large scale controlled commercial plantings the fruit is seedless. The Tango was developed by scientists at the University of California Riverside by exposing the Nadorcott plant material to irradiation in order to bring about changes (or mutations) in the Nadorcott. By irradiating the Nadorcott, the ability of the Nadorcott to produce seeds, when exposed to pollinators such as bees and pollen from other mandarin varieties, is impaired.

Eurosemillas, Stargrow and others are proceeding to sell and plant the Tango without the permission of the NCP. The issue to be decided by the court is whether the changes introduced to the Nadorcott through irradiation makes the Tango a new variety, or whether the Tango exhibits predominantly the features of Nadorcott and is therefore an essentially derived variety. The implication if the Tango is found to be the same as the Nadorcott or essentially derived from the Nadorcott is that the authorisation of the NCP is required to plant and sell the Tango in South Africa.

In the interdict application the NCP and Citrogold ask the court to order that the Tango cannot be sold in South Africa until the court has determined the legal relationship between the Nadorcott and the Tango. In the meantime, the NCP and Citrogold, being represented by the intellectual property firm DM Kisch assisted by Robert de Rooy Attorneys, have also issued summons to claim damages from Eurosemillas, Stargrow and those that are selling or planting the Tango without authorisation from the NCP. The determination of the real legal relationship between the Nadorcott and the Tango will coincide with the hearing of the damages claim.