6.5 INNOCENT INFRINGEMENT (Section 57)

The Court may refuse to make an order for damages or account of profits if the purported infringer can demonstrate that at the time of the infringement they were not aware and had no reasonable grounds to be aware that PBR existed over the variety.

If the propagating material of the material had been “sold to a substantial extent” with a PBR label before the date of infringement the person is taken to have been aware of the existence of PBR unless they can prove otherwise.

The question here will depend on the demonstration of the meaning of “substantial extent” and the courts will look at the circumstances of each case as well as the established meaning of this term.

At this stage no judgments have been made on this issue.

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