DNA Fingerprinting Permitted as Evidence for Granting Ad-interim Injunction in a Plant Variety Infringement Case

The Plaintiff, PepsiCo India Holdings Private Limited instituted a suit against some farmers in Gujarat who were alleged to be illegally growing, producing and selling, without PepsiCo’s permission , the potato variety FL2027 (commercial name FC-5) registered by PepsiCo under the Protection of Plant Varieties and Farmers’ Rights Act, 2001 (hereinafter referred to as ‘the PPFVR Act’). An application for interim injunction was also filed.

The registered variety is used in the manufacture of potato chips under the brand name Lays and PepsiCo claimed that the defendant is illegally growing, producing and selling without permission such variety in violation of PepsiCo’s statutory rights granted under section 64 and 65 of the PPVFR Act.

The registered variety which is a hybrid of FL 1867 and Wischip varieties, was applied for registration as a new variety with the Plant Variety registry on 2nd February 2012. PepsiCo granted licences to some farmers in Punjab to bring potatoes of said variety on the buy-back system. PepsiCo learnt of the infringement by the Defendant in January 2019 following which they collected samples from the Defendant’s premises in the presence of the Defendant and sent said samples for verification to their in-house laboratory as well as government laboratories, namely, to the ICAR and Central Potato Research Institute, Shimla. Both the Plaintiff’s in-house laboratory as well as the Government laboratory pointed that the DNA of the sample collected by PepiCo from the Defendant’s premises matched with DNA of PepsiCo’s registered potato. Based on the same PepsiCo claimed infringement of the registered plant variety. It was further submitted that balance of convenience was also in favour of PepsiCo and that they would suffer irreparable loss if an interim injunction was not granted and further that any delay in granting an interim injunction would defeat the very purpose of filing the suit.

The Court found a prima facie case in PepsiCo’s favour and granted an ex-parte ad-interim injunction till the next date of hearing.

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