In Spain, for a while now the rights of intellectual property are on everyone's lips. Mainly copyright, probably because of their more direct impact on consumers and users.

Perhaps because of its intangibility, perhaps due our culture or perhaps simply because of the ignorance of those rights and its consequences, right-holders had had to start legal actions with a larger or minor exemplary effect. Such is the case of Plant Varieties rights.

On March 2 El Pais published that the plant varieties owners are increasing their enforcement activity in defense of their rights, by the prosecution against Spanish farmers who cultivated protected varieties without authorization.

The protection offered in Spain can be exercised before civil and criminal courts. Despite its date, we felt it appropriate to rescue for the purpose of this comment the judgment in a criminal proceeding on January 4, 2011 issued by the Second Instance Court of Burgos, since it is a rarely frequent. Some practical applications can be drawn.

It was considered proved by the Court that the defendant signed with different holders of Plant Varieties (registered) production or multiplication agreements of different varieties of cereals, in order to obtain vegetable material to be delivered to them; that he treated such grains in order to be suitable for planting and breeding; and his intention was selling that material to third parties at a price lower than certified products, all without permission of the owners.

The Court rejected the defendant's arguments based on an outstanding probation work and nothing common in IP procedures handled before criminal courts. The judges understood that:

- The destination of the seized material was to be sold to third parties and for sowing, since it preserved full conditions for such purpose thanks to the treatment implemented by the defendant. The exception for the farmer does not allow the transmission to others of excess plant material, not even for free. Irrespective of the condition of grain or seed, the existence of the crime relies on the ability for propagation. If such material is transmitted the crime occurs.

- Article 274.3 of the Criminal Code requires that the farmer knows the existence of the variety registration. This has come to be interpreted by the Courts as the need to send a warning letter before to file the complaint. A more modern interpretation considers the requirement as fulfilled on the basis of a presumption of knowledge of the record. In this case the accused had extensive experience as a producer and distributor of seeds and also signed several agreements to produce certified seeds.

- Some criminal Courts understood that only the infringement of plant varieties registered in Spain could be subject of criminal prosecution, thereby leaving community registrations. The Criminal Court of the city of Burgos modified this criterion stating that for the crime to occur it is only necessary that the variety is registered, thus not excluding the CFR.

The case concluded confirming the first instance decision and therefore sentenced the defendant to one year imprisonment, an economical fine of 4320 Euros, a total compensation for damages caused to the owners of Plant Varieties of 17,452 Euros and to pay the legal fees.