Providing convincing evidence in court proceedings is often quite a challenge and requires foresight and appropriate strategy. This became painfully clear in a protracted case on infringement of plant breeders' rights that was settled by the Hague District Court on January 10, 2018.

Infringement?

This is a case between Bottoms (later the legal successor Pine Valley) on the one hand and Nursery X (hereinafter "the Nursery") and Campo on the other hand. The Nursery and Campo are hereinafter jointly referred to as Campo et al.

Campo, a plant merchant, was summoned by Bottoms on March 15, 2005, to cease delivery of a plant called "Luseane." This was because Campo would be infringing Bottoms' plant breeders' rights. Because Campo did not answer this summons in time, Bottoms filed a criminal complaint of plant breeders' rights infringement with the General Inspection Service (hereinafter: AID).

On April 22, 2005, the AID seized plants at the Nursery, alleging that the plants were supplied by Campo. These plants were turned over to the Plant Breeders' Rights Board for investigation. Because the results of the investigation suggested infringement and the prosecution did not bring criminal charges against Campo, Bottoms on December 15, 2008, sued Campo et al. themselves in a civil suit.

Sowing uncertainty

During the oral hearing of the case in January 2012, Campo et al. raised the defense that the seized and sampled plants had not been supplied by Campo at all. Because this contention was substantiated, doubt arose in the court as to the origin of the sampled plants.

Evidence assignment

That led to an interlocutory ruling in March 2012 in which the court gave Bottoms an evidentiary order. Bottoms had to prove that in the raid the AID took plants supplied to the Nursery by Campo (and not another supplier).

To satisfy the burden of proof, Bottoms' legal successor, Pine Valley, called as witnesses, among others, the two AID officials by whom the 2005 seizure was made. After the parties presented further evidence to support their contention, the judge ruled in January 2018 that it was not established that the seized plants were supplied by Campo.

The judge has several main reasons for reaching this conclusion.

First, the statements of the AID officials do not match the other evidence provided by Bottoms/Pine Valley. In doing so, the court notes that that the witness interviews date from 7 years after the seizure. This, according to the court, unmistakably has a (significant) negative impact on the memory of the witnesses heard. The court noted that the statements differ from the other evidence in the following respects:

• the length of the plants does not match;
• the number of plants that would have been present at the Nursery deviates significantly; and
• The period of time that the plants would have been present at the Nursery is not correct.

In addition to the above discrepancies between evidence provided and the officers' statements, the judge's decision takes into account that Pine Valley's legal predecessor Bottoms also supplied plants to the Nursery in the past. As a result, the seized plants could also be cuttings from Luseane plants previously supplied by Bottoms.

Final sum

The court ruled on January 10, 2018, that it was not established that Campo supplied the seized plants. Pine Valley therefore fails the burden of proof. This results in the case being decided in favor of Campo et al. even before the court gets around to dealing with the substance of the infringement. The infringement claim is dismissed. Incidentally, the counterclaims were also dismissed because the court had insufficient factual evidence available for them.

This case shows once again how important it is to adequately substantiate facts with evidence. This sounds logical and simple but certainly in intellectual property infringement cases it can be damned tricky.

Witnesses do not always work in favor of the party calling them. The passage of time can also be of decisive importance in litigation. In hindsight, the plaintiff should have requested a "preliminary witness examination" at a much earlier stage - e.g., immediately after the interlocutory judgment - to secure witness evidence. Alternatively, the AID officials could have made a statement to a notary public.

Here you can find the final judgment dated Jan. 10, 2018.