A recent judgment of the Court of Justice of the European Union (CJEU) underscores the need for Community Plant Variety Rights (CPVR) holders to respond promptly to communications from the Community Plant Variety Office (CPVO) and to pay annual fees on time. The judgment (Case C-426/24 P) dismissed an appeal by Romagnoli Fratelli SpA, whose CPVR for the 'Melrose' potato variety was cancelled by the CPVO due to non-payment of an annual fee by the prescribed deadline.
The CPVO had issued a debit note and reminder via its online platform, MyPVR, and sent emails to inform the rights holder of these uploads, followed by a further email reminder. When the payment deadline and an additional extended term had passed, the CPVR was cancelled. The rights holder subsequently filed an application for restitutio in integrum (restoration of rights for missed deadlines), arguing they had not received the notifications and that it was unlawful to use the MyPVR system for official communications. The CPVO denied this application, a ruling upheld first by the General Court and now by the CJEU.
The CJEU held that the President of the CPVO is expressly authorised under EU law to determine the means of electronic service (electronic service being expressly allowed under Regulation No 2100/94), and in view of this that MyPVR is a valid means of service for official documents. The court also noted that the rights holder had opted for electronic communication.
Crucially, the CJEU emphasised that the burden of proof rests on the CPVR holder, stating: "in order effectively to challenge the service of that debit note and of that reminder, it was for the appellant to prove that those documents had not been placed in its MyPVR user area or that it had not received the related confirmation emails, which it did not do." In other words, the fact that the rights holder had not spotted the notifications did not render the service invalid.
This judgment has important practical implications for breeders and companies managing plant variety rights portfolios. It confirms the legal standing of the MyPVR system as a means for electronic delivery of official communications and highlights the risks of overlooking official correspondence.
The message is clear: to avoid the permanent loss of valuable intellectual property rights, CPVR holders must monitor their MyPVR accounts, keep contact details current, and consider using professional representatives. In plant variety rights, diligence is the best safeguard against costly cancellations.
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