United Exports Group Enforces its PBR in Blueberries, South African Grower in Breach of Contract
Perth/Rotterdam, November 6 – The United Exports Group has successfully stopped several shipments of exported blueberries of its CPVR-protected varieties (marketed and sold, but not packaged and branded, under the Trademark OZblu®) in Rotterdam, The Netherlands without a licence to do so. The custom enforcement action was carried out by the Dutch Customs Authority, who, upon the request of the titleholder, issued a Red Alert Notice resulting in the confiscation of two containers, with some 10 tonnes and 16 tonnes of fruit respectively.
United Exports subsequently released the shipments to its former licensee and agreed to provide an interim temporary licence. The enforcement action has generated considerable media coverage with varying takes on the dispute.
In 2016, the United Exports Group became a joint titleholder of the proprietary blueberry varieties (OZblu®) developed by the breeder Dave Mazzardis. In the current co-ownership arrangement, United Exports is responsible for the variety commercialization and return of royalties to the breeding program for further variety development. In South Africa, the majority of the OZblu® fruit production is handled at the United Exports’ farms with roughly 40 percent of the fruit volume grown by the third-party producers. Both internal and external fruit production takes place in South Africa, where, according to United Exports, its partnerships with third-party producers have been very successful.
The United Exports’ standard license agreements with growers contemplates a contract producer who leases and grows plants under licence and with the support from United Exports’ Agronomists and produces fruit for sale under the Ozblu® brands. In 2017, Charles Rossouw of Rosle Berries Pty Ltd, which is part of the Rossouw Farming Group, signed two such licence agreements with United Exports: one for a farm in the north and one for a farm in the south. In May 2020, he terminated both licences in the belief he could keep the plants and continue both production and marketing of fruit using United Exports brands and varieties.
When United Exports pointed out that a condition of termination was that the Rosle Group returns the plants, they entered into an interim licence and blueberry sale arrangement with United Exports in respect of the northern farm, and have since started removing large numbers of licensed plants from that farm. At the same time, the Rosle Berries went on to export fruit produced on its farm in the Cape to the EU and Asia, in some cases using the OZblu® brands and the variety names to do so while registering their fruit with South Africa's Perishable Produce Export Certification Agency (PPECB) under confusingly similar variety names and then under a “variety” called “Blueberries” to enable the export from South Africa.
United Exports notified the Dutch Customs Authority that the Rosle had terminated its licence. The Dutch Customs then proceeded to confiscate the fruit concerned on arrival in the EU and issued Red Alert proceedings against Rosle Berries’ South African export agent, the shipper and the Belgium purchaser of the fruit. “The European Customs Authority recognition and protection of CPVR in general and application of this regulation was extraordinary,” says United Exports Director Roger Horak.
On November 17, United Exports reached a settlement with the Rosle Berries in respect of its southern farm as well and granted Rosle Berries a further interim and temporary licence in respect thereof. Rosle Berries will be able to sell the remainder of their end-of-season fruit for this season under strict terms to ensure that United’s Intellectual Property is protected and have agreed that they submit themselves to arbitration with regard to the removal of the plant material from the farm. In light of the COVID-19 crisis and with blueberries being a food crop, United Exports chose not to pursue the destruction of the fruit in the containers and halting the entire harvest.
“What remains a major challenge for the industry, is that export companies are knowingly complicit in the sale and marketing of unlicensed fruit, in this case going to significant lengths to circumvent detection. The industry needs to tidy up its act,” said Horak.