ENZAFruit is the owner of the Scilate Apple, which is more commonly known by the Envy brand, and this IP infringement case is considered a landmark victory in China as it is a Court of First Instance victory in Chinese IP litigation.
According to ENZAFruit spokesman Morgan Rogers, this has been crucial in setting a precedent that can also apply to various other products in China.
“Significant research, development, marketing and sales investment has gone into creating the unique variety and building our premium Envy brand,” he said.
“This is why we strongly protect and defend our IP to ensure its value flows through to consumers, customers, licensed growers and communities.
“[This victory has been vital in] creating a precedent which discourages Plant Variety Rights (PVR) infringement and provides enhanced PVR protection.”
ENZAFruit secured this victory via Chinese law firm Lusheng, which also provided more details on how fruit and other plant firms are able to utilise updated China regulations to protect their IPs.
“[This] recent court win marks a landmark moment in Chinese PVR history as not only was the New Zealand- based operator of exotic fruits awarded a high compensation in an Agamogenesis Plant Variety (PVR) field, but it also saw punitive damages granted – a rare instance in PVR cases,” Lusheng Senior Associate, Disputes Resolution Jerry Zhao told FoodNavigator-Asia.
“[We] were able to leverage the recent expansion of the Chinese Seed Law which came into effect in March 2022 - As the updated legislation expanded the protected propagation materials from trees, branches, and seeds to cover harvested materials a.k.a fruit, Lusheng were able to prove that apples in this case had grounds to be protected as a form of a harvested materials generated from the illegal propagation materials.
“What we demonstrated was that the revised Seed Law made it possible for PVR owners to better identify and tackle infringers as propagation material evidence is usually hard to detect and preserve.”
Although the amount of penalties resulting from the final judgement was not disclosed, Zhao revealed that infringers who violated the Envy Apples IP would have to pay ‘significant damages’, including punitive damages.
“The wider impact of this case win means that PVR holders can expect a wider protection scope, with a higher protection level,” he added.
“[This is] something that will be well received by the wider agriculture sector and any food business exporting goods to China.”
The court victory was obtained in the Lanzhou Intermediate Court of Gansu Province.
Could this mean a spark of hope for kiwifruit?
We previously reported that Zespri has also been facing similar IP infringement challenges in China over its SunGold golden kiwifruit, with many local farmers already having grown their own versions of these and not only selling but also exporting these to other markets.
When asked whether this new court victory was a potential solution for the kiwifruit sector as well, Zhao highlighted that there was strong potential here given the similarities between both fruits.
“Kiwifruit is highly similar with apple as both are Agamogenesis plants (a.k.a plants produced by asexual reproduction) - therefore, they can enjoy a similar kind of PVR protection in China when evidence is properly prepared,” he told us.
“The revised Seed Law and PVR regulations fully reflect the Chinese Authority’s determination to protect PVR rights in China, such as in this case where punitive compensation was applied by the Chinese court and a high amount of compensation was awarded to the PVR right owner.
“All these factors should encourage both foreign and local PVR right owners to actively protect their rights and provide high quality fruit to the Chinese market - Our best piece of advice is to look to China for protection, since the law has empowered organisations to more actively protect their PVR rights,”
“It is important to closely monitor the market, collect evidence as early and effectively as possible, bring specialist IP legal experts in, and take legal action in a timely matter.”
However, one point that Zespri may need to note is that this precedent has some differences from its case at this point in time – most notably, that ENZAFruit already has a growing partner in China, JOY WING MAU, which is licensed to legitimately grow Envy Apples in the country.
This is an avenue that Zespri has not been able to follow through on so far, as its growers had already voted against establishing a local kiwifruit strategy in China back in 2021.
