一审：昆明市中级人民法院(2025)云01知民初1号

First Instance: Kunming Intermediate People’s Court, Case No. (2025) Yun 01 Zhi Min Chu No.1

二审：最高人民法院(2025)最高法知民终169号

Second Instance: Supreme People’s Court, Case No. (2025) Zui Gao Fa Zhi Min Zhong No.169

成立即主要实施侵权可认定为“以侵权为业”——“普拉布鲁 1542（Plablue1542）”蓝莓植物新品种侵权案

Engaging in Major Infringing Activities upon Establishment May Be Found as "Engaging in Infringement as a Business" — Infringement Case Involving the New Blueberry Plant Variety Plablue1542

西班牙某植物股份有限公司系“普拉布鲁1542（Plablue1542）”蓝莓品种的植物新品种权人。某农业公司系该品种在中国的被许可人，并经授权有权以自己的名义维权。某种植基地成立于2024年7月18日，其销售人员的微信朋友圈自同年7月、抖音账号自同年9月起持续对外宣传销售蓝莓种苗，展示大量育苗基地、瓶苗及幼苗场景。同年7月30日，某农业公司通过公证取证方式前往种植基地购买被诉侵权蓝莓苗。基地内种植了大量蓝莓苗，其销售人员在现场使用“西班牙42”指代被诉侵权品种，自述培育的蓝莓苗包含“42”及其他多个品种，单批次育苗总量达12万株，并称“枝条是找关系偷偷取的枝条”“42是从为某农业公司进行组配的公司拿的瓶苗”。在12万株蓝莓苗中，被诉侵权品种为2万株，另一蓝莓品种占全部种苗的半数。某种植基地没有就该另一品种经合法许可的来源作出合理说明或提供证据证明。经检测，某农业公司购买的被诉侵权蓝莓苗与“普拉布鲁1542（Plablue1542）”为极近似或相同品种。

A Spanish plant joint-stock company is the holder of the new plant variety right for the blueberry variety Plablue1542. An agricultural company is the licensee of this variety in China and is authorized to enforce its rights in its own name.

A planting base was established on July 18, 2024. Starting from July 2024, its sales staff continuously promoted and sold blueberry seedlings via WeChat Moments; starting from September 2024, such promotion continued on its Douyin account, with numerous postings showing seedling nurseries, in vitro plantlets and young seedlings. On July 30 of the same year, the agricultural company purchased the allegedly infringing blueberry seedlings at the planting base through evidence notarization.

A large quantity of blueberry seedlings were cultivated at the base. On-site sales staff referred to the allegedly infringing variety as "Spanish 42". They stated that the blueberry seedlings they cultivated included "42" and several other varieties, with a total batch output of 120,000 seedlings. The salesperson also admitted that "the cuttings were secretly obtained through connections" and that "the in vitro plantlets of variety 42 were acquired from the company that performed tissue culture for the agricultural company".

Among the 120,000 blueberry seedlings, 20,000 belonged to the allegedly infringing variety, and another blueberry variety accounted for half of all seedlings. The planting base failed to provide a reasonable explanation or supporting evidence for the legally licensed source of that other blueberry variety. Test results confirmed that the allegedly infringing blueberry seedlings purchased by the agricultural company were highly similar to or identical with Plablue1542.

云南省昆明市中级人民法院一审认为，某种植基地明知其未获许可仍生产、繁殖、销售、许诺销售被诉侵权蓝莓苗，具有侵权故意。该种植基地除生产、繁殖被诉侵权蓝莓品种外，还未经许可生产了另一品种且该品种占所培育批次数量的一半。据此，可以推定某种植基地生产、繁殖、销售的蓝莓种苗中超过67%未经合法授权，为侵权种苗，应认定为以侵害品种权为业。一审法院据此适用惩罚性赔偿，判令某种植基地赔偿某农业公司经济损失共计144000元、维权合理开支1万元。某种植基地不服，提起上诉。最高人民法院二审认为，某种植基地明知其销售的“西班牙42”系他人授权品种，仍然未经许可进行生产、繁殖、销售、许诺销售，具有侵权故意。除被诉侵权蓝莓品种以外，某种植基地种植的另一蓝莓品种占半数以上，结合销售人员关于枝条和繁殖材料来源的陈述，以及未能就来源作出合理说明或举证，可以认定上述蓝莓苗系通过非法方式获得。某种植基地在成立之初就通过非法方式获得蓝莓的繁殖材料进行生产、繁殖，且未经许可生产的蓝莓品种占大多数，应认定构成“以侵权为业”，依法应适用惩罚性赔偿。故二审判决驳回上诉，维持原判。

In the first instance, the Kunming Intermediate People’s Court of Yunnan Province held that the planting base knowingly produced, reproduced, sold and offered for sale the allegedly infringing blueberry seedlings without authorization and possessed subjective intent to infringe. In addition to producing and reproducing the allegedly infringing blueberry variety, the planting base also produced another blueberry variety without permission, which accounted for half of the seedlings in the batch. Accordingly, it may be presumed that more than 67% of the blueberry seedlings produced, reproduced and sold by the planting base were unlicensed infringing seedlings, and the base shall be found to engage in infringement of variety rights as a business. Applying punitive damages, the first-instance court ordered the planting base to compensate the agricultural company for economic losses totaling RMB 144,000 and reasonable expenses for rights protection of RMB 10,000. Dissatisfied with the judgment, the planting base filed an appeal.

In the second instance, the Supreme People’s Court held that the planting base knew "Spanish 42" it sold was a licensed variety owned by a third party, yet still produced, reproduced, sold and offered for sale such seedlings without permission, with subjective intent of infringement. Apart from the allegedly infringing blueberry variety, another blueberry variety cultivated by the planting base made up more than half of the total seedlings. Combined with the salesperson’s statements regarding the source of cuttings and propagating materials, as well as the base’s failure to provide reasonable explanation or evidence for the source, it can be determined that the aforesaid blueberry seedlings were obtained through illegal means.

The planting base acquired blueberry propagating materials illegally for production and reproduction right after its establishment. Since unlicensed blueberry varieties constituted the majority of its output, the base shall be deemed to "engage in infringement as a business", and punitive damages shall apply in accordance with law. Accordingly, the second-instance judgment dismissed the appeal and affirmed the original judgment.

本案系人民法院平等保护中外育种者创新成果的典型案例。本案细化了“以侵权为业”的司法认定标准，结合侵权方自设立即开展侵权活动，且生产繁育的苗木中未经合法授权的侵权品种占大多数的案件事实，认定侵权方构成以侵权为业并适用惩罚性赔偿，加大对种苗繁育源头侵权行为的打击力度，充分彰显我国严格、平等保护种业知识产权的司法立场。

This case serves as a typical example of People’s Courts equally protecting innovative achievements of Chinese and foreign breeders. It refines the judicial criteria for identifying "engaging in infringement as a business". Based on the facts that the infringer carried out infringing activities immediately upon establishment and the majority of seedlings it produced and bred were unlicensed infringing varieties, the court found the infringer engaged in infringement as a business and imposed punitive damages. This ruling strengthens crackdowns on infringing conduct at the source of seedling breeding, fully demonstrating China’s judicial stance of strict and equal protection of intellectual property rights in the seed industry.

仲英豪律师系盈科昆明知识产权法律事务部主任、专利代理师，长期深耕植物新品种侵权等疑难知识产权案件，此前已有多个案件入选《最高人民法院知识产权法庭裁判要旨摘要》。盈科昆明将持续以专业力量护航种业创新，为筑牢国家粮食安全法治防线贡献智慧与担当。

Lawyer Zhong Yinghao is Director of the Intellectual Property Legal Affairs Department of Yingke Kunming and a patent attorney. He has long specialized in complex intellectual property cases including disputes over infringement of new plant varieties. Several of his prior cases have been selected into the Abstract of Guiding Judgments of the Intellectual Property Court of the Supreme People’s Court.

Yingke Kunming will continue to safeguard innovation in the seed industry with professional capabilities, contributing wisdom and responsibility to consolidating the legal line of defense for national food security.