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[Duckless]

Here's the problem. Purchased furtilized duck eggs under contract from local duck farm. One of the terms of the contract was that I don't sell, give away, or hatch out ducklings or eggs unless the contents of the eggs are "dead".

I make a product with these eggs that require the duck embrio be alive. Under these terms I could not produce my product.

Last Feb. 2004 there was an outbreak of Avian flu. No egg products could be sold and the contract came to an end "frustrated". They had already given me notice before to terminate the contract and start produceing the same product I make.

As there was going to be a complete cull of birds in the area (19 million), and there was going to be no compensation for unborn (hatched) animals, I hatched out these ducklings (900) rather than throwing them away at a considerable loss (20 thousand eggs). At the end of 5 months the cull was called off and my birds were saved, but most of the other farm was eradicated with exception of some hatching eggs that they used to start up again.

The farm where I purchased the eggs is now suing me saying that I breached the contract and that these ducks are regesterd to their farm as a specialty breed and that because I now have them they are suffering because I am "destroying it's commercial asset".

They did not "develope" this duck, but purchased them when they purchased their farm. It is regestered to their farm as a distinct line of Pekin duck that has a lineage going back to the original 9 ducks brought to the US in 1870. They do not exibit any different traits than any other commercial pekin. They are seeking an injunction that I distroy these birds.

Thanks

[JimIvey]

I think you're going to need a lawyer for this one.  There can be no currently enforceable patent on a duck that been around since 1870.  I'm pretty sure there's no copyright in ducks since they're not an original work of authorship.  Unless you're tagging or otherwise associating the ducks with a name and/or design of the other farm, there's no trademark issue.  And, I don't immediately see a trade secret issue either.

So, the "registration" is unlikely to be any type of intellectual property.  It's probably like a registered dog breed.  

All that's left is the contract issue, and that's a bit off-topic for us here.  It sounds like you may have breached the contract, but you're under an obligation to mitigate damages and it sounds like you did what you could to avoid a total loss.  Perhaps they'd buy back those ducks for a refund (partial, at least) refund of your purchase price.

There's also typically a ... I forget the exact language for the clause, but it means "major force" and refers to huge catastrophes that are not anticipated in the contract -- earthquakes, fires, lightning, hurricanes, etc.  That might help excuse your breach.  Have your contract attorney consider that issue.

If they're seeking an injunction, you're going to need legal help for that.  Someone with good ol' contract experience can help you with that.

Good luck.