Supermarket giant Asda has been accused of ‘wishful thinking’ in seeking to argue the difference between two types of oranges in a rights infringement case.

The supermarket is being sued by Nador Cott Protection SAS, which holds a plant breeders’ right (PBR) to a particular variety of mandarin orange called Nadorcott. Asda sells a competitor variety of mandarin named ‘Tang Gold’ or sometimes ‘Tango’, which the claimant says is derived from Nadorcott and therefore its sale infringes the PBR.

In response, the supermarket says Tang Gold is actually derived from another variety of orange, W. Murcott, which it says is factually distinct from Nadorcott. 

But Mr Justice Mellor in the High Court has ruled it is not open to Asda to argue the two oranges are distinct, because the defendant had not pleaded the issue. ‘To raise such an issue properly, Asda would have had to have set out the differences which supported a conclusion that those varieties were "factually distinct"', the judge said.

ASDA sign

Mr Justice Mellor in the High Court has ruled it is not open to Asda to argue the two oranges are distinct

Source: iStocK

In a preliminary hearing in Nador Cott Protection SAS v Asda Stores Limited Mellor noted Asda had reached an agreed statement of facts with the claimant on 10 September, in which it agreed that W. Murcott was re-named Nadorcott, implying they are the same variety.

‘Anyone who had it in mind to plead that the two varieties were factually distinct would have immediately realised they would need to plead out the facts said to support that i.e. the differences relied upon’ Mellor said. ‘Asda have neither pleaded any allegation nor adduced any evidence to this effect.’

Mellor concluded: 'Overall, therefore, the contention that it was open, on the current pleadings, to Asda to run the argument that W Murcott and Nadorcott are factually distinct varieties was, in my judgment, nothing more than wishful thinking. I emphasise that, my decision on this pleading Issue aside, I retain an open mind on the allegations which are currently open on the pleadings. Those are matters for the trial.'

The case will proceed to a three to four day trial in the Patents Court on 24 November.