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Mishcon de Reya secures ground-breaking win for United Phosphorus against parties dealing in unauthorised agrochemicals in the EU

Posted on 13 October 2017

Mishcon de Reya secures ground-breaking win for United Phosphorus against parties dealing in unauthorised agrochemicals in the EU

United Phosphorus (UPL) has succeeded in its claims against a number of UK manufacturers and traders of pesticides who had placed unauthorised copies of UPL's products on the market in Germany.  The case is thought to be the first UK case in which a search and seizure order has been used against counterfeiters in the agrochemical sector.

Jeremy Hertzog, Head of IP at Mishcon de Reya, and Victoria Wilson, a Managing Associate in the IP Group, advised UPL. Analytical Alternatives provided key litigation support by undertaking pre-action investigations and gathering market intelligence which led to the successful result.

In breach of an EU Regulation (1107/2009), the manufacturers and traders were exploiting the EU parallel-trade regime by placing, or assisting with placing, unauthorised pesticides on the market in Germany.  The pesticides were intended to copy UPL's equivalent, authorised metamitron-based herbicide known as Metafol, and were sold in Germany under parallel trade permits on the basis that the products were genuine, authorised Metafol.

UPL secured admissions, undertakings and compensation of £1.7m from the traders of the illegal pesticides (Agchemaccess and Nicholas Gooch), who settled UPL's claims shortly before trial.

UPL's claim against the UK manufacturers of the pesticides (Grosvenor Chemicals, Whyte Chemicals and Melvyn Whyte) went to a trial on liability in May 2017.  In a recent High Court judgment, the manufacturers were found liable to UPL for breaches of German unfair competition law, in particular for knowingly assisting Agchemaccess in placing unauthorised copies of Metafol on the market in Germany in breach of the Regulation. The court granted UPL an injunction, with UPL's damages to be determined.

Exceptionally, UPL commenced proceedings by obtaining without notice search, freezing and/or disclosure orders against the defendants.  This cross-border dispute also raised complex and novel issues of German law and EU regulation, and is the only reported case in the UK in which a UK toll formulator has been held liable for knowing assistance under German unfair competition law.

Jeremy Hertzog said: "The scale of trade in illegal pesticides is substantial: Europol estimates that annual revenues associated with such illegal trade are over €4.4 billion globally, and the European Directorate-General for Health and Food Safety estimates that at least 10% of the EU pesticides market is comprised of illegal products.  According to the ECCA/ECPA, this may be the tip of the iceberg.  The outcome of this case marks an important win for UPL and the wider agrochemicals industry in the on-going fight against counterfeit and otherwise illegal pesticides."

Victoria Wilson added: "Supporting the operations of regulators and law enforcement authorities is an important component of brand protection for agchem companies but, as shown by this case, civil litigation can also be a powerful and rewarding tool for tackling illegal pesticides."

About us

Mishcon de Reya's IP team has a longstanding record of successfully acting for clients whose intellectual property and associated rights have been infringed.  Those infringements may take the form of counterfeiting, piracy, fraud, data theft and hacking – all activities which threaten business revenue and brand integrity.  We represent a wide range of global corporations covering sectors including life sciences, automotive, technology and retail.  We are IP and international injunction specialists, and we utilise our experience and expertise to help clients stop infringements and maximise their financial recovery.

For further information, please contact Jeremy Hertzog or Victoria Wilson.