CPVO Sonata T-133/08 "Lemon Symphony"

A danger of being deprived of the internet for a week or so is that the joys of instant (mis)information can become a little distracting. For example, this Kat found out that an adaptation of Beethoven's 9th Symphony is the anthem of the EU and Council of Europe. Further click happy trigger fingers led her to the wonderfully romantic if slightly ridiculous 'curse of the ninth'. As a result, it was with European adaptations and supernatural causality in mind that the General Court's judgment in T-133/08 Schräder v OCVV - Hansson was considered. The judgment concerned a spider's web of facts and law which came together in four joined cases. In each, Schräder challenged decisions of the Board of Appeal of the Community Plant Variety Office (CPVO) broadly relating to proceedings concerning two varieties of the Osteospermum ecklonis African rain daisy species (Community Plant Variety Right (CPVR) protected reference variety LEMON SYMPHONY and CPVR denied SUMOST 01) and issues arising from an adaptation of an official description and the effect and validity of a faxed summons.

Introduction (the facts)

LEMON SYMPHONY was granted a CPVR in 1999. Despite the variety being deemed to have fulfilled the distinctiveness, uniformity and stability (DUS) criteria (per art. 6, Reg No 2100/94 (CPRV reg)), during the technical examination carried out in 1997, the Bundessortenamt informed the CPVO that there was a risk that the examination had not progressed satisfactorily due to growth regulator treatment and trimming of the propagating material. However, the official description compiled during that examination, including the description of the characteristic 'attitude of shoots' as 'erect', was reproduced in the Register of Community Plant Variety Rights.

The owner of the rights over LEMON SYMPHONY, Hansson (the intervener in this case), brought infringement proceedings against a company (in which the applicant, Schräder, had a 5% shareholding) growing and marketing SUMOST 01 before the German civil courts in 2005. A Bundessortenamt expert report requested in those proceedings and a subsequent technical examination ordered by the CPVO, found that SUMOST 01 could not be clearly distinguished from LEMON SYMPHONY and other widely-known varieties.

However, Schräder subsequently filed an application for cancellation of LEMON SYMPHONY's CPVR on the ground that the plant material used to make the comparison did not match the plant material examined in 1997 for the purposes of the grant of the CPVR, and that it therefore lacked stability contrary to arts. 21 and 9. It was contended, on the evidence of an expert report from 2003, that LEMON SYMPHONY had never been an erect variety, despite what was stated in the Register. He submitted that the examination of LEMON SYMPHONY carried out on the basis of the TG/176/3 test guidelines received different scores when compared to the preceding official description of the same variety: the variety no longer corresponded to its official description entered into the Register of CPVRs. 

The CPVO therefore carried out a technical verification (per art. 64) applying new guidelines (CPVO-TP/176/1, based on previous guidelines TG/176/3), concluding that LEMON SYMPHONY should be retained, and subsequently adapted the official description of the variety in the Register. Although the new description expressed the characteristic 'attitude of shoots' as '‘semi-erect to horizontal’, deviating from the 1997 description, a further examination report on SUMOST 01 still found that the variety was not clearly distinct from LEMON SYMPHONY. The variations in the description of the expressions of the characteristics were attributed to, inter alia, a change in the scale of scores due to the increase of comparison varieties and changes in the scores themselves due to the new test guidelines, deeming it necessary for an adaptation of the Register by the CPVO.

Schräder commenced three actions before the Board of Appeal relating to the above facts. However, his request that the cases be stayed until the CPVO ruled in annulment proceedings relating to LEMON SYMPHONY upon which the other cases depended (case T-242/09 in current proceedings) was denied. Despite the objections and a failure to observe the one-month notice period, the Board of Appeal held the oral proceedings in Schräder's absence and dismissed the appeals. It observed that the summons had been sent in accordance with the proper procedure as Schräder had accepted the earlier hearing date proposed by the Board by virtue of, inter alia, return of an acknowledgment of receipt contained in a fax which stated that 'the CPVO intends to summons the parties to attend oral proceedings'. 

Exposition (the cases)

In the first action considered by the General Court (T-242/09), Schräder broadly alleged that by failing to examine the issue as to the plant material on which the technical examination was carried out, resulting in the expression attributed to the characteristic 'attitude of shoots', the Board of Appeal's refusal to annul the CPVR granted to LEMON SYMPHONY infringed, inter alia, the rules on the burden of proof and taking of evidence.

The remaining three actions (T-134/08, T-133/08 and T-177/08) concerned, inter alia, a common plea alleging that the three contested decisions were adopted in breach of the right to be heard and of art. 59(2) of the implementing regulation (one month minimum notice period of summons) constituting a substantive procedural defect, since the oral proceedings took place at a hearing to which Schräder had not duly been summoned and which he had refused to attend for legitimate reasons.

Further, in case T-133/08, Schräder asked the court to annul the decision of the Board of Appeal concerning the legality of the decision on the adaptation of the description.  

Development (attitude of shoots and burden of proof)

Case T-242/09 concerning annulment proceedings relating to LEMON SYMPHONY was dismissed as unfounded. The Court conducted an extensive review of the first plea, resulting in the remaining pleas being rejected as factually groundless. Among many other things, the Court;

Rejected the allegation of infringement of arts. 76 and 81 on the grounds that the allegation was based on the incorrect premise that the burden of proof lay on the CPVO, and a failure to prove infringement of the rules of burden of proof and taking of evidence to the requisite legal standard;
  • The Court noted that in a strict sense art. 76 is inapplicable to annulment proceedings because such proceedings do not come within the scope of arts. 54 and 55. It is not for the Board of Appeal to carry out the substantive examination (art. 54) or the technical examination (art. 55), or to rule on the lawfulness of such an examination carried out by the CPVO in the context of an application for a CPVR. The task of the Board of Appeal is solely to rule, on the application of an interested party, on the lawfulness of a decision of the CPVO refusing to declare the Community plant variety right null and void (art. 20(1)(a)) on the ground that it has not been established by that party that the conditions set out in arts. 7 or 10 were not satisfied at the time when the right was granted;
  • Where an interested party, and not the CPVO of its own motion, initiates annulment proceedings, arts. 76 and 81 read in conjunction with art. 20 place the onus on that party to prove that the conditions for a declaration of nullity had been met, which Schräder failed to do. Although these rules of evidence differed from that provided for in the Community Trade Mark (CTM) reg, they were justified on the grounds that; the CPVR reg does not distinguish between absolute and relative grounds for refusal of registration; that the rules were consistent with those implement in the Community designs reg, and; because the rules are consistent with the general principles of law and rules of procedure applicable to the burden of proof and the taking of evidence;
  • Further, the General Court held that it was appropriate to apply by analogy to the Board of Appeal of the CPVO the Court's case-law according to which a request for the adoption of measures of inquiry made by a party cannot be accepted if that party offers no evidence whatever to justify such measures. In the present case Schräder had failed to advance any evidence whosoever capable of constituting prima facie evidence to support his contention, repeated many times but never substantiated, and disputed by all the other parties to the proceedings, that chemical and mechanical treatment or the taking of cuttings such as that carried out in the present case might have distorted the results of the technical examination of LEMON SYMPHONY in 1997.
Original score for Squeeze's 'Cool for Cats'
The Court found that in actual fact Schräder was seeking to obtain a fresh assessment of the relevant facts and evidence. The complaint that the Board of Appeal did not examine the issue as to the plant material did not require expert or technical knowledge and did not therefore limit the scope of review. However, it gave the Court the opportunity to clarify the law relating to the proof of accuracy of well-known facts, and in this regard the case-law of the Court of Justice in CTM proceedings was transposed to the bodies of the CPVO and to the judicial review which the General Court exercises over their decisions. As such, whether facts on which bodies of the CPVO base decisions are well-known or not is a factual assessment, which save where the facts or evidence are distorted, is not subject to review by the Court of Justice on appeal.

What was subject to full judicial review was the issue as to whether the levels of expression attributed in respect of the characteristic 'attitude of shoots' be determined according to relative or absolute criteria. The Court held that 'the characteristic ‘attitude of shoots’, the levels of expression of which run, according to the test guidelines, from ‘erect’ to ‘drooping’, through ‘semi‑erect’ and ‘horizontal’ and the nuances between those terms, is not, except in extreme cases, an ‘absolute’ characteristic which can be determined in a thoroughly objective manner using only the measurement of the angle of inclination of the shoots, but a characteristic which, by reason of the specific nature of its expression, can, depending on the case, be the subject of a relative and comparative assessment between varieties of the same species' (at [166].

Therefore, LEMON SYMPHONY remained exactly the same between 1997 and 2005. There was no material amendment of the description affecting the identity of the variety, but merely an amendment of the terms originally chosen, which did not change the identity of the variety but merely enable it to be described more accurately, in particular by delimiting it in relation to other varieties of the species.

Retransition (procedural defects)

In cases T-133/08, T-134/08 and T-177/08, the decisions of the Board of Appeal were set aside on the ground that art. 59(2), implementing reg (one month minimum notice period of summons) and the right to be heard were infringed. The Court held;
  • A failure to observe the minimum notice period constitued a material procedural defect rendering the decisions unenforceable. It was unnecessary to prove that the failure harmed the applicant and it was no answer that the shortening of the minimum notice period by only two days constituted an insignificant procedural defect;
  • The formal serving of a summons is designed to guarantee the proper conduct and fairness of the proceedings, and compliance with a minimum time interval must give the parties the opportunity to prepare appropriately for the oral proceedings. Since the Community legislature assessed the time interval necessary for that purpose as at least one month, it was not for the Board of Appeal to call into question that assessment on a case-by-case basis.
As regards the request for a stay in proceedings, the Court found that contrary to the decision of the Board of Appeal, Schräder had a legitimate and well-founded reason for requesting a stay. The Board of Appeal seriously prejudged, in fact as well as in law, the decision to be taken in the proceedings even though they had only just begun. The chairperson of the Board of Appeal had used her powers inappropriately, if not abusively, in seeking to hold a hearing notwithstanding the applicant’s reasonable and well-founded objections.  

Recapitulation (adaptation of the description)
The IP Orchestra (all types together)

As regards the final issue concerning the annulment of the decision on the adaptation of the description in Case T-133/08, the Court held that it did not have jurisdiction to decide the issue as the Board of Appeal did not rule on the substantive issues concerning the legality of the decision on the adaptation of the description.

Again the CTM legal framework was considered analogous and followed by the Court. The provisions relating to the jursidiction of the General Court to both annul and alter a decision are identical in both the CTM reg (art. 65(3)) and CPVR reg (art. 73(3)). The Court of Justice's judgment in Case C‑263/09 P Edwin v OHIM [2011] ECR I-0000 that the power of the General Court to alter decisions does not have the effect of conferring on that Court the power to substitute its own reasoning for that of a Board of Appeal or to carry out an assessment on which that Board of Appeal has not yet adopted a position was followed. Exercise of the power to alter decisions must therefore, in principle, be limited to situations in which the General Court, after reviewing the assessment made by the Board of Appeal, is in a position to determine, on the basis of the matters of fact and of law as established, what decision the Board of Appeal was required to take.


Procedural law can be a tricky mistress, but it's nice to see the laws of different types of IP weave together.

China Cat Sunflower - a 10 minute live version to get you through this long post.
CPVO Sonata T-133/08 "Lemon Symphony" CPVO Sonata T-133/08 "Lemon Symphony" Reviewed by Kate Manning on Tuesday, October 02, 2012 Rating: 5


  1. Just to get some horticultural pedantry in here: Osteospermum is not a sunflower. Sunflower generally refers to Helianthus annuus. Osteospermum ecklonis is usually called African rain daisy. Sometimes you'll see them called Cape daisy, but I believe that name is protected by TM.

    Great to see a CPVR article - more please!

  2. Community Plant Variety Right also has different durations for different categories of protected item - 25 years for most plant varieties, 30 years for trees, vines and potatoes. As someone working with CPVR, I find this arbitrary - the development time of some other plants, particularly shrubs is also very long. Furthermore, in practice, the commercial life of some fruit tree varieties, for example, is often less than ten years before they are replaced by a newly developed variety.

  3. Horticultural pedantry always welcome. The post has been corrected - thank you for the heads up.

    In regard to durations, would it be a better system to have bespoke time limits based on development time or a one size fits all duration?

  4. I was thinking about duration in relation to the Posner comments on patent - the CPVR system is analogous to the different lengths of copyright that he refers to. The problem is that some products ca be developed quickly whereas other developments can take a generation. I was speaking to an apple breeder recently - he was quite literally working on stuff that had been started by people in his organisation that are now retired - and he expected there to be no outcome before he retired! But he pointed out that some new apples are developed within 5-7 years and have a commercial life of less than a decade. So it seems that both one-size-fits-all and a categorised system have their failings - and, in my opinion, setting durations on a case-by-case basis would be rather cumbersome.


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