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NL – VG Colours v. HE Licenties and Hanson Uitgevers

22 Nov 2019

VG Colours B.V. vs. HE Licenties B.V. and Hanson Uitgevers B.V., Provisions Judge of the District Court of The Hague, The Netherlands, 11 October 2019, ECLI:NL:RBDHA:2019:11479

Hanson Uitgevers B.V. is the owner of Dutch national patent NL 1040904 (”NL 904”) entitled ”Substance introduction method for plant and plant obtained therewith”, HE Licenties B.V. holds an exclusive licence under NL 904 and is a wholesaler of, inter alia, coloured orchids in accordance with NL 904.

VG Colours B.V. is involved in, among other things, the artificial colouring of (originally white-coloured) orchids.In its decision of 19 June 2019 in the final relief infringement proceedings between HE Licenties and VG Colours regarding NL 904, the District Court of The Hague had ruled that VG Colours infringes NL 904 (see EPLAW headnote here).

In the current proceedings, VG Colours has requested the Provisions Judge to i) order HE Licenties to cease or suspend the execution of the decision of 19 June 2019 and to ii) order HE Licenties to cease informing third parties that VG Colours infringes NL 904. VG Colours argues that the decision of 19 June 2019 was based on an obvious error, and that, therefore, execution of this decision on the merits should be ceased or suspended. The alleged obvious error consisted of the District Court of The Hague not considering some of VG Colours’ arguments.

The Provisions Judge rules that the obvious error criterion is not met. It is not an obvious error if a judge or court does not consider arguments based on the procedural ground that these arguments were submitted out of time. With respect to another set of arguments, the Provisions Judge reasons that it is questionable whether, and therefore not obvious that, these arguments were considered by the District Court, as a result of which there can be no obvious error.

VG Colours further put forward that HE Licenties has acted disproportionately in the enforcement the 19 June 2019 decision. VG Colours stated that HE Licenties has taken a ‘large number of completely random execution measures’, such as levying seizures against clients of VG Colours and sending written notices to VG Colours regarding forfeiture of incremental penalties for non-compliance with the court order.

The Provisions Judge ruled that HE Licenties has a legitimate interest in enforcing the final relief decision. The 19 June 2019 decision has been declared provisionally enforceable and the Judge does not see why execution measures, which are directly linked to a provisionally enforceable decision, would be disproportionate. With respect to letters sent to (potential) clients of VG Colours, in which HE Licenties addressed the infringement of NL 904 by VG Colours, the Provisions Judge rules that these, even though they have a significant impact on the continuity of VG Colours’ business, are not unlawful. HE Licenties based the letters on the final relief decision. Such letters would only be unlawful if HE Licenties acted in bad faith, for example if HE Licenties knew or should have known that VG Colours did in fact not infringe NL 904 or that there is a serious, non-negligible chance that NL 904 would be invalidated.

A copy of the decision (in Dutch) can be read here.

Headnote and summary: Jaap Bremer, BarentsKrans