Nador Cott v Asda: plant variety rights, mandarin oranges and the limits of 'essentially derived'

In a judgement handed down on 12 March 2026, Mr Justice Mellor dismissed Nador Cott Protection SAS's claim that Asda Stores Limited and International Procurement and Logistics Limited had infringed UK Plant Breeders' Right number 28016 by importing and selling Tang Gold mandarin oranges. The decision, proceeding under the Shorter Trial Scheme, turns on the interpretation of section 7(3) of the Plant Varieties Act 1997 and offers the first substantive judicial analysis of essentially derived varieties (EDVs) in English law.

The varieties and their origins

Nadorcott is a mandarin orange variety discovered in Morocco in the early 1980s by Dr El Bachir Nadori at INRA. Tang Gold — also marketed as Tango — originated when the University of California, Riverside irradiated budwood derived from material that Dr Nadori had supplied to Professor Bitters in 1985. The irradiation was deliberately aimed at rendering the resulting plants sterile, producing fruit that is essentially seedless under any conditions. The parties agreed that only two characteristics distinguish the varieties: CPVO Characteristic 18 (anther viable pollen, absent or very few in Tang Gold versus many in Nadorcott) and CPVO Characteristic 68 (fruit seed count under controlled cross-pollination, absent or very few in Tang Gold versus medium in Nadorcott). Both differences were accepted as resulting directly from the irradiation.

The dependent variety issue

Section 7(3) of the 1997 Act — implementing Article 14(5) of the UPOV Convention 1991 — requires that an essentially derived variety must: (a) be predominantly derived from the initial variety while retaining the expression of the essential characteristics resulting from its genotype; (b) be clearly distinguishable from the initial variety; and (c) except for differences resulting from the act of derivation, conform to the initial variety in the expression of those essential characteristics.

NCP argued that the word "retaining" in section 7(3)(a) must be read alongside the carve-out in section 7(3)(c), such that differences flowing from the act of derivation — here, reduced fertility and pollen viability — are excluded from the assessment. On that reading, Tang Gold retained everything that mattered about Nadorcott. Asda countered that section 7(3)(a) requires all essential characteristics to be present in the derived variety, and that a derived variety which lacks an essential characteristic by reason of the derivation itself simply cannot satisfy the threshold.

Mellor J accepted Asda's construction. The judge held that seediness and pollen viability are essential characteristics of Nadorcott: both are fundamental to the variety's performance and commercial value, engaging the interests of growers, distributors and consumers alike. Growers of Nadorcott must take specific management steps — netting or sufficient spacing from compatible varieties — precisely because of the variety's fertile pollen and ovules, while Tang Gold growers face no such obligation. Because those characteristics are not retained in Tang Gold, section 7(3)(a) is not satisfied and Tang Gold is not an essentially derived variety. The claim accordingly failed on the first issue.

The reasonable opportunity issue

Although not required for the outcome, the judge addressed section 6(3) fully. He concluded that "his rights" in the proviso refers exclusively to the UK plant breeders' right, consistently with the Act's use of that expression throughout. Foreign rights are not incorporated into the provision absent express language, and no such language appears. "Unauthorised use" is similarly confined to territories where a right exists and has not been authorised. It follows that Tang Gold fruit imported from Peru, Chile or Egypt — countries where NCP holds no right in Nadorcott — could not in any event engage section 6(3).

The judge further held that "exercise his rights" means enforcement to the effect of preventing the harvested material from being obtained, not merely the commencement of proceedings. The cascade principle, whilst important, does not create the rigid binary that Asda advanced: its function is to introduce a flexible, fact-sensitive test, not to extinguish all downstream enforcement once upstream proceedings are on foot. On the facts, proceedings in Spain (commenced 2008) and South Africa (commenced 2014) remain unresolved at first instance; the growers supplying Asda are unknown to NCP and have been systematically concealed. Had Tang Gold been an EDV, NCP would not have been denied relief under section 6(3).

The judgement confirms that the EDV concept in English law represents a narrow extension of plant breeders' rights. It also signals a potential divergence from EU law: the omission from Article 13(6) of the EU Plant Variety Regulation of the "while retaining" language found in Article 14(5)(b)(i) of UPOV 1991 — and faithfully reproduced in section 7(3)(a) of the 1997 Act — may well yield a different result on equivalent facts before the CPVO or a European court. Rights holders and breeders operating across both regimes should note that distinction carefully.

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