Action brought on 4 July 2011 - Lyder Enterprises v CPVO  Liner Plants NZ (1993) (Southern Splendour)

(Case T-367/11)

Language in which the application was lodged: English

Parties

Applicant: Lyder Enterprises Ltd (Auckland, New Zealand) (represented by: G. Pickering, Solicitor)

Defendant: Community Plant Variety Office (CPVO)

Other party to the proceedings before the Board of Appeal: Liner Plants NZ (1993) Ltd (Waitakere, New Zealand)

Form of order sought

Set aside and annul the decision of the Board of Appeal of the Community Plant Variety Office of 18 February 2011 in case A007/2010; and

Stay the proceedings until the final decision of the High Court of New Zealand in case No CIV:2011:404:2969 is taken.

Pleas in law and main arguments

Applicant for Community plant variety right: The applicant

Community plant variety right concerned: Southern Splendour - Community plant variety right application No 2006/1888

Objector to the Community plant variety right application: The other party to the proceedings before the Board of Appeal

Grounds of the objection: The objection was based on the contention that the applicant was not the person who bred, or discovered and developed the variety, or his successor in title

Decision of the Committee of the CPVO: Refused the application No 2006/1888 for the variety "Southern Splendour" (Decision No R972)

Decision of the Board of Appeal: Dismissed the appeal

Pleas in law: Infringement of the audi alteram partum rule, lack of competence, failure to understand the fundamental rules of natural justice and infringement of an essential procedural requirement, as the Board of Appeal decided that the evidence contained in the applicant's letters was not acceptable as it was not in affidavit format.

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