Delhi High Court 'lays' down the law; rejects PepsiCo appeal over registration of potato variety used in Lay's chips

The Delhi High Court recently rejected an appeal by PepsiCo India Holdings against an order of the Protection of Plant Varieties and Farmers' Rights Authority that revoked the company's registration for a potato variety grown exclusively for its Lay's potato chips. [PepsiCo India Holdings Pvt Ltd v. Kavitha Kuruganti] .Justice Navin Chawla observed that the company's application was deficient and, therefore, the Authority was justified in revoking the registration of the potato variety under Sections 34(b) and (c) of the Protection of Plant Varieties and Farmers' Rights Act, 2001..PepsiCo moved the High Court challenging a December 2021 order of the Authority revoking its registration with respect to the FL 2027 potato plant variety and a letter of February 2022 rejecting its application for renewal of the registration..The Authority revoked the registration on the grounds that the Certificate of Registration had been issued based on incorrect and ambiguous information regarding the date of the first sale of FL 2027 and the categorization of the variety, which had been marked as "new" instead of "extant."Additionally, the Authority noted that the Certificate of Registration had been granted to an entity that was not eligible for protection under the Act as PepsiCo had provided incorrect and inadequate information regarding the complete chain of assignment of its rights in FL 2027. Furthermore, the Authority observed that the certificate had not been issued in the public interest..PepsiCo's counsel claimed that the mistake regarding the date of the first sale was a bona fide one, as there was confusion over whether the required date of commercialization was specific to India or covered the world. Regardless, both dates met the requirements for registration, it was argued. On the mistake with respect to the categorization, the Court was informed that a clarification was sought by the Registrar and the same was provided by them.It was also highlighted that the Assignment Deed with respect to the rights over the variety was executed in the United States of America (USA) and thus, it was not stamped or registered. Under the law in the USA, there is no requirement of stamping or registration of an Assignment Deed..On the other hand, counsel for the respondent claimed that even in the revised application, the appellants had chosen the category "extant variety". They maintained that as different rules apply to both the categories, the same was done by the appellants as they would have been ineligible under "extant variety".The respondents stated that integrity of an Intellectual Property Rights (IPR) regime has to be maintained diligently and cannot be compromised by a negligent and arrogant approach, as done by PepsiCo.Accordingly, it was contended that the registration was rightly revoked as it should not have been given in the first place..The Court noted that PepsiCo, in a letter to the Registrar, had clarified that it sought registration of FL 2027 as an "extant variety". Further, it noted that even otherwise, PepsiCo had nothing to gain by misrepresenting the variety as both provided for the same duration of registration.The Court, therefore, held that the appellant could not have been held guilty of having obtained the registration by providing incorrect information with respect to FL 2027 being a "new variety‟..However, the Court found no merit in the argument that there was ambiguity in the form as the form sought details of countries where the variety was commercialised.Stating that the date of commercialisation was crucial information, the Court observed that the onus of providing correct information in the application was on PepsiCo, which could not shift the same to the Authority. The Court added that PepsiCo, having given incorrect information, could not plead that no difference would have resulted in the consideration of the application had correct information been provided..Furthermore, the Court agreed that the Assignment Deed could not have been rejected by the Authority. However, underlining that PepsiCo's application was nevertheless deficient, it ruled that the Authority was justified in revoking the registration..PepsiCo was represented by Senior Advocate Dayan Krishnan along with with Advocates Dheeraj Nair, Kumar Kislay, Anjali Anchayil, Shruti Dass, Aishna Jain, Sanjeevi Seshadri and Vikarsh Gupta.The respondents were represented by Senior Advocate Colin Gonsalves along with Advocates Hetvi Patel and Rohit Saini..[Read Judgment]