PRACTICE AREAS

Protection of Breeder's Rights of New Plant Varieties

Protection of Breeder's Rights of New Plant Varieties in Turkey

In Turkey, the protection of breeder's rights of new plant varieties is governed by Law No. 5042, which came into force on January 15, 2004. This legislation allows plant breeders to legally protect their new varieties of reproduced plants. Turkey, as a member of the International Union for the Protection of New Varieties of Plants (UPOV), adopted this new protection type on November 18, 2007, becoming the 65th member of UPOV. Lex Lata Consulting and Law Firm, a reputable legal service provider, is authorized to obtain, maintain, and enforce plant breeder's rights before the Variety Registration and Seed Certification Center and the General Directorate of Plant Production, which are part of the Ministry of Food, Agriculture, and Livestock in Turkey.

Who can apply for protection?

The Law grants the right to apply for breeder's rights to Turkish citizens, real persons and legal entities resident in Turkey, and parties that have the right of application for protection of breeder's rights under the UPOV Convention. The application can be made by the breeder or their authorized representative.

Conditions for protection

To obtain breeder's rights, the variety must meet several conditions. It must be new, distinct, uniform, and stable. The novelty criterion is of particular importance, as the majority of applications that are denied protection fail to fulfill this requirement. The Law defines novelty as the variety not being sold or disposed of to others by or with the consent of the breeder in Turkey earlier than one year before the date of application, or in other countries earlier than four years (six years for trees and vines) before the date of application. Certain actions, such as biosafety measures or registration for commercialization purposes, do not affect novelty. Turkish courts have ruled in favor of applicants in cases where the Ministry rejected an application based on the variety being registered on the national list, stating that registration does not constitute commercialization and does not impact novelty.

Scope, procedure, and term of protection

Once breeder's rights are granted, the breeder has exclusive rights over various acts related to the propagating material of the protected variety. These acts include production, multiplication, conditions for propagation, offering for sale, selling or marketing, exporting, importing, and stocking. The breeder can choose the name under which the variety is registered, and if the variety is registered in a UPOV country, the application in Turkey must be made with the same name. All properly filed applications are published by the Ministry in an official bulletin. Objections to the applications can be filed within three months after the publication date. The term of protection is 25 years from the date of registration, except for trees, vines, and potatoes, which have a 30-year protection period.

Right of priority

If an applicant or their successors have made an application in a UPOV member country, they can claim the right of priority in their application in Turkey. The date of application in the UPOV country will be deemed as the date of application in Turkey. To be granted the right of priority, the applicant must state this demand in the application.

Legal rights in case of infringement

In the event of any infringement of breeder's rights, the breeder has the right to seek immediate court intervention to stop the infringement, seize the production, and claim compensation for material and immaterial damages, including loss of profits. Infringement of breeder's rights can also result in criminal liability. Turkish courts have seen an increase in infringement cases filed based on the Law, with a majority of the cases seeking compensation for both material and immaterial damages. While proving material damages can sometimes be challenging, courts have been inclined to award compensation for immaterial damages even without conclusive evidence of material damages.

Concluding remarks

The number of applications for the protection of plant breeder's rights in Turkey has been steadily increasing. However, some breeders fail to apply for protection under the Law due to a misconception that registration on the national list for commercialization provides the same level of protection. As awareness grows and the legal system becomes more efficient in handling infringements, it is expected that the number of applications will continue to rise. Plant breeder's rights play a crucial role in promoting innovation and development in the agricultural sector, and the Turkish legislation and practice are aligned with international standards set by UPOV and the EU directives.

This article provides a brief overview of the protection of plant breeder's rights in Turkey and is not intended to serve as legal advice. For specific inquiries and detailed information, it is recommended to seek advice from experienced legal professionals in the field.

FAQs - Plant Variety Rights (Plant Varieties) in Turkey

When did the first plant variety rights law come into force in Turkey?

The first plant variety rights law in Turkey came into force on January 15, 2004.

Is Turkey a member of the International Union for the Protection of New Varieties of Plants (UPOV)?

Yes, Turkey became a member of UPOV on November 18, 2007.

Which governmental offices are authorized for prosecuting and registering applications for Plant Variety Rights (PVR)?

The Variety Registration and Seed Certification Center and the General Directorate of Plant Production, which are part of the Ministry of Food, Agriculture, and Livestock in Turkey, are authorized to handle the prosecution and registration of applications for Plant Variety Rights (PVR).

What is the protection term for plant variety rights (PVR) in Turkey?

The protection term for plant variety rights in Turkey is 25 years from the date of registration. However, for trees, vines, and potatoes, the protection term is 30 years.

Who can file applications for plant variety rights (PVR) and obtain protection for plant varieties in Turkey?

Turkish citizens, nationals of UPOV member states, foreign nationals resident in Turkey, and foreign nationals benefiting from reciprocity can file applications and obtain protection for plant varieties in Turkey.

Is it required to appoint a representative if the applicant's address is not in Turkey?

Applicants who are citizens of a UPOV member state and do not have a domicile, seat, or establishment in Turkey must appoint a procedural representative residing in Turkey by Power of Attorney legalized by Apostille or the Turkish Consulate, if the applicant's country is not a member of the Hague Convention (Apostille Convention).

What are the requirements for obtaining protection for plant varieties?

To obtain protection for a plant variety, it must meet four basic requirements: novelty, distinctiveness, uniformity, and stability.

Which information and documents are required for filing applications for new plant varieties?

When filing applications for new plant varieties, the following information and documents are required:

Formal and technical information, including the Turkish and Latin denomination of the variety in the botanical taxon, the denomination or provisional denomination used by the breeder, priority date and territory if priority is claimed, technical properties of the variety, information and documents regarding prior commercial exploitation, payment receipt of the filing fee, geographical origin of the variety, and a certified copy of the priority document if any priority is claimed.
High-resolution photos of the variety in color, which indicate the characteristics of the plant variety. These photos are mandatory for fruits and ornamental plants and optional for field crops and vegetables.
Power of Attorney notarized and legalized by Apostille if the applicant is not a Turkish citizen.
Assignment of rights, if applicable, covering the name and address of the breeder and the indication of how the rights were acquired.
A description of the plant variety.
The document of the first commercial use, such as a copy of an invoice and a declaration for first commercial use.

What is the novelty condition in terms of the first commercial use?

The novelty condition in terms of the first commercial use means that the variety will be considered novel if it has not been made available to the public or sold for the purposes of commercial exploitation by the right owner or with their consent:

Within Turkey for more than one year before the date of application.
Outside Turkey for more than four years, or six years for trees and vines, before the date of application.

How long is the priority claim period?

The priority claim period is 12 months from the date of the application filed in a UPOV member country. The application date filed in Turkey will be deemed as the first application date in the UPOV country.

What are the requirements for claiming priority right?

To claim priority right, the applicant should inform the Turkish PBR Office that they would like to benefit from the priority right originating from their first application. If necessary, the Turkish PBR Office may ask the applicant to submit legalized copies of the application documents and translations, as well as samples and evidence proving that the variety in question is the same as the one in the priority application.

What is the scope of the formal examination?

The formal examination is conducted to ensure that all the required documents and information for the acceptance of the application have been provided.

Is there any possibility to correct deficiencies or mistakes?

If any deficiencies or mistakes are found, the Turkish PBR Office will ask the applicant to correct them within one month. Failure to do so will result in the application being deemed withdrawn.

In which aspects are the substantive examination conducted?

The substantive examination is conducted to determine whether the variety is novel, whether the applicant is entitled to apply, and whether the proposed denomination of the variety complies with the requirements of the Law.

What is the publication period of an application for a new plant variety?

Applications are published within 30 days of being recorded at the registry after the substantive examination. The publication period for third-party opposition is three months.

In what aspects are technical examinations performed?

Technical examinations are conducted to confirm the variety's botanical taxon, determine its distinctness, uniformity, and stability, and prepare the variety description.

Which authority is authorized to conduct technical examinations?

Technical examinations can be conducted by any main offices of the Ministry of Agriculture and Forestry, related offices, or other appointed offices. The Variety Registration and Seed Certification Center (TTSM) usually conducts technical examinations, or the applicant may conduct them if deemed appropriate by the Ministry.

Can technical examinations be based on tests conducted in other countries?

Yes, technical examinations can be based on tests conducted by authorized offices in UPOV member countries, as long as the agricultural climate conditions are similar to or the same as those of Turkey.

If technical examinations are based on tests conducted in other UPOV countries, when should they be submitted to the Turkish PBR Office?

If technical examinations are based on tests conducted in other UPOV countries, the tests should be submitted along with the application. If the tests are not completed at the time of filing, the Turkish PBR Office should be provided with the technical questionnaire or the already submitted technical questionnaire with its Turkish translation, along with the payment of the technical examination fee.

How are the grant procedures handled after the completion of the technical examination?

Once the technical examination is completed, the technical examination report is sent to a special committee, the Committee for Registering Plant Breeder's Rights. This committee consists of experts from various related organizations and offices. The committee grants the Certificate of Plant Breeder's Rights.

Is the grant decision of the plant varieties published?

Yes, the grant decision is published within 30 days of the registration date for opposition purposes.

What are the conditions for denominating a variety?

The denomination of a variety should be a meaningful or meaningless word or group of words, or a combination of letters and numbers that allows the variety to be recognized. The denomination should be linguistically sufficient and should not contain expressions contrary to public order and general morality.

Conclusion

The protection of breeder's rights of new plant varieties in Turkey is governed by Law No. 5042, which aligns with UPOV regulations. Turkey's membership in UPOV ensures international recognition and harmonization of plant breeder's rights. Lex Lata Consulting and Law Firm, with its expertise in this field, can assist breeders in obtaining, maintaining, and enforcing their rights before the competent authorities in Turkey. The application process involves various stages, including formal examination, substantive examination, and technical examination. Once granted, breeder's rights provide exclusive rights to the breeder for a specified period. It is essential for breeders to understand the requirements and conditions for protection to ensure the successful registration and enforcement of their plant varieties.

For more information and personalized assistance regarding plant breeder's rights in Turkey, please contact Lex Lata Consulting and Law Firm.