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Frequently Asked Questions: Edited October 2005
What is the legal basis in Turkey for protecting breeder’s rights on new plant varieties? The Law No. 5042 pertaining to the protection of breeder's rights on new plant varieties has been published in the Official Gazette no. 25347 dated January 15, 2004 whereby plant variety rights will be granted registration by the Ministry of Agriculture/General Directorate. The Implementing Regulations of the Law No. 5042 has also been published in the Official Gazette no. 25551 dated August 12, 2004. What is the authorized body for obtaining protection of breeder’s rights on new plant varieties? The registration proceedings are carried out by the General Directorate of Protection and Control which is the authorized body operating under Ministry of Agriculture and Rural Affairs. Who is entitled to obtain protection of breeder’s rights for new plant varieties? Nationals of Turkish Republic, or real persons or legal entities with a domicile or an effectively operating business within the territory of Turkish Republic or those persons entitled for application under the provisions of UPOV Act can enjoy the variety protection right. Meanwhile, any real person or legal entity which do net meet the conditions set in the above mentioned paragraph but is a national of the states granting variety protection on a de facto or de jure basis to the Turkish Republic citizens shall be entitled to enjoy the right of protection in accordance with the principle of reciprocity. Is Turkey a member of UPOV? (International Union for the Protection of New Varieties of Plants) Turkey’s application for being a member of UPOV was filed on October 21, 2004 and this filing has been favorably considered by General Secretariat of UPOV. The final proceedings in this matter will be completed before the Turkish Parliament. What is the duration of protection? The duration of protection is 25 years from the grant of the right. For trees, vines and potatoes, the said period is 30 years from the said date. Ending date of protection period shall be calculated as to run from the end of the calendar year. What are the general conditions for obtaining protection? The plant variety in question should be
in order to obtain protection. What are the conditions for 'novelty'? The variety is deemed to be new if, at the date of filing of the application for a breeder's right, propagating or harvested material of the variety has not been sold or otherwise disposed of to public, by or with the consent of the breeder, for purposes of using exploitation of the variety, at home where the application has been filed earlier than one year before that date, and abroad earlier than four years or, in the case of trees or of vines, earlier than six years before the said date. Which conditions do not affect the 'novelty'? Following cases shall not affect the consideration of variety as new:
What are the conditions for ‘distinctness’? A variety shall be deemed to be distinct if it is clearly distinguishable from any other variety whose existence is a matter of common knowledge on the date of application or on the date of priority right. A variety is considered as known if an application filed in any State has led to the granting of breeders right or entering the variety in the register on if the commencement of variety exploitation or existence of a variety in a variety catalogue of a professional institution or inclusion in a reference collection is in question. What are the conditions for 'uniformity'? A variety shall be deemed to be uniform if it is sufficiently uniform in its relevant characteristics, except those possible variations that are subject to propagation method used. What are the rules of denomination of a variety?
Denomination of a protected variety will be its generic designation. While filing the application, the denomination proposed by the applicant or the provisional denomination used by the breeder should be provided. The applications should be made with the denomination designated in the cases where denomination is registered and used in Turkey or in a country which is a party to UPOV. The General Directorate, during substantive examination, assesses the proposed variety denomination whether it is suitable pursuant to related provisions of the Law. The denomination of the variety is announced when publication of the registration is made. Obligation to use the denomination applies even after the termination of the breeder’s right. The applicant who proposes the denomination does not have right to obtain a further trademark right for the subject denomination.
When does the provisional denomination -if provided- become a final denomination? If a provisional denomination has been proposed in the application petition for the variety, the General Directorate requests the applicant, just before the registration phase, to submit a final denomination. The applicant has to submit, within 30 days, final denomination for the variety. When the Ministry approves the denomination, it communicates the denomination to countries party to the UPOV Convention and publishes it in the Bulletin. Is it possible to object against the variety denomination? Objections can be lodged, within 3 months from publication date of the denomination in the Bulletin, against the denomination. Authorities of countries party to the UPOV Convention may address their observations on the denomination. Objections and observations shall be communicated to the applicant and he shall be given 30 days term to respond. In case the applicant responds to the objections and proposes a new denomination, the new denomination is published and 3rd parties have right to object against the new denomination. In case no response is received from the applicant the application shall be refused. Motivated decision taken by the Ministry on acceptance or refusal of the objection shall be notified to the parties involved. A court appeal may be instituted within 30 days of notification. What is the filing procedure for obtaining protection? Owner of the variety files an application in writing with the General Directorate in order to benefit from the protection. The application for a breeder’s right should contain the following information and documents: The application form provided by the General Directorate should be filled in and a cover letter addressing to the General Directorate requesting the protection should be prepared. Within the application form the following information should be provided:
Other Filing Related Issues :
When should a representative be assigned for filing proceedings? Applicants/breeders with no residence or active business place in Turkey should assign a Turkish representative for filing and registering the breeder’s rights on new plant varieties. A notarized power of attorney confirming that the applicant has empowered the representative to proceed with filing and registration formalities before the General Directorate should be submitted during filing. Can applicants benefit from priority right? If the applicant or his predecessor in title has already applied for a property right for the variety in a country party to the UPOV Convention, and the date of application is within 12 months of the filing of the earlier application, the applicant shall enjoy priority right for the earlier application as regards the application for the breeder’s right in Turkey. In such a case the date of the application in any party to the UPOV Convention shall be deemed to be the date of application in Turkey. In order to benefit from the right of priority of the first application, the breeder shall so inform, in the subsequent application, the Ministry in writing. Priority rights not exercised within the prescribed time-period shall be considered to be void. The authority with which the subsequent application has been filed may require the breeder to furnish, within a period of not less than three months from the filing date of the subsequent application, certified copies and translations of the documents which constitute the first application, and samples or other evidence that the variety which is the subject matter of both applications is the same. The Ministry, upon the request of the applicant, may provide up to two years period after the expiration of duration of priority to furnish any necessary information, document or material required for the purpose of technical examination. Where the first application is refused or withdrawn, the Ministry may decide to cancel the extension period and require the applicant to furnish the necessary information, document or material required for technical examination in 12 months after the date of rejection or withdrawal. What is formal examination of the application? The General Directorate assigns a Commission to carry out formal and substantive examination of the application. In the formal examination process the Commission considers the documentation and information submitted during filing. If the Commission concludes that the application has been unduly and incompletely filed the applicant is given 30 days to complete the outstanding documents and information. If the applicant fails to complete the file or correct the deficiencies within said term the application will be deemed not to have been filed. In case the deficiency is related to the priority right the applicant is deprived of his priority right and the application is proceeded without priority right. What is substantive examination of the application? The General Directorate assigns a Commission to carry out formal and substantive examination of the application. In the substantive examination process, the following issues are taken into consideration:
Following the substantive examination, if the Commission finds out any impediment to the grant, the General Directorate refuses the application and this refusal is notified to the applicant within 30 days. In case the refusal decision refers to denomination of the variety the applicant is required to propose a new denomination within 30 days. Where the applicant does not respond the decision of refusal is finalized. If no formal deficiency is found the application is accepted by the Commission and is given an application number. How does publication procedure run? The application which is deemed to be fully and accurately filed upon formal and substantive examination is registered with the log and is published in the Plant Variety Bulletin within 30 days (The data in the subject Bulletin is accessible via internet www.kkgm.gov.tr) What kind of information is included in the publication?
Is it possible to file an opposition to the application upon publication? Any opposition to the application can be filed with the Ministry, within three months following the publication of the application in the Bulletin. What are the possible grounds of an opposition? Oppositions can be filed on the grounds that the variety is not new, not uniform and not stable, or the applicant is not entitled as holder or the variety denomination is not suitable pursuant to the related articles. The opposition should be filed in writing together with the supporting evidences and documents. How does the procedure for evaluation of opposition run? The opposition(s) filed to the application is notified to the applicant and the applicant is required to inform within 3 months his observations against the opposition and whether he still maintains his application or claims amendment to the application. The period given to applicant may be extended for a maximum two months term provided that applicant so requests and this request is based on valid grounds. Where applicant does not respond within the period given, the application is deemed to be withdrawn. If the applicant informs that he will maintain his application or amend it, the person who filed an opposition is informed and required to provide information, within 30 days, on whether he maintains his opposition. If the opposing party still maintains his opposition on the basis of his opposition;
The Directorate itself, determines the method of technical examination in order to carry out the examination as required by the grounds of opposition. The opposing party may be required to furnish, in support of his opposition, additional information, document or propagating material that is the subject of technical examination. If the opposition is within the scope of the above mentioned paragraph (a), within 30 days of the decision of the General Directorate, the decision may be brought before the court for appeal. Within one month from notification of decision on the acceptance of the opposition based on actual entitlement, authentic holder who files an application for the same variety may request the General Directorate to consider the application date of the previous refused variety as s his application date, if so Ministry shall accept this request. What is the procedure of technical examination of the variety? Subsequent to formal and substantive examination of the application and publication of same in the Bulletin, the variety is subject to a technical examination. The conditions of the technical examination are set by the General Directorate and the examination is carried out under observation of the General Directorate. The criteria in the technical examination are whether the variety belongs to the specified botanical taxon; whether the variety is distinct, uniform and stable (DUS testings). In case the variety complies with the requirements for being distinct, uniform and stable the “Variety Characteristics Certificate” will also be prepared.
The General Directorate may instruct the applicant to carry out technical examination. Upon the request of the General Directorate, the applicant shall provide General Directorate with the results of growing tests or other tests to be performed by himself or by third parties designated by it. Technical review may be based on the outcome of these tests. When must the testing material be submitted for technical examination purposes? General Directorate requires the applicant to deliver the testing material within 4 months as from the publication of the application. The quantity or the volume of the testing material is designated by the General Directorate. In the event that the applicant fails to deliver such testing materials within the determined term the application will be refused. What are the criteria for testing materials? Test materials shall meet those minimum germination standards on the basis of varieties for the seed in the lowest certified class as designated by the General Directorate. Test materials picked up from the variety sample shall be set aside to be used in the DUS tests while the rest shall be retained as the reference sample. The trial period for the variety in the DUS tests shall be at minimum one growing season in ornamentals; three seasons for perennial field plants and trees, and two seasons for other species. In the event there arises a problem in DUS tests in relation to the variety, these periods may be extended. For the purposes of conducting the DUS tests, those principles and test criteria, which are laid down in the Plant Characteristic Certificates drawn up based on those UPOV and CPVO technical principles designated for that plant species shall be implemented. If there is not any criterion or characteristic certificate designated by UPOV and CPVO for the plant species under the application, the institution shall lay down those examination criteria by itself. What does the technical examination report include? The Technical Examination Report includes the test results for evaluating the variety’s being distinct, uniform and stable. In case the Report is inadequate supplementary examinations may be carried out and all the reports in this regard and the test results are delivered to the General Directorate. What are the grounds for ex-officio refusal?
What is the grant procedure? Upon favorable completion of the technical examination the breeder’s right is recorded in the Register and the applicant is provided with the Breeder’s Right Certificate and the registration is published in the Bulletin within 30 days as from the decision of registration. The registration of the breeder’s right in relation to the protected variety shall be published in a bulletin within thirty days from the registration date. What kind of information is included in the bulletin regarding registration? Following details shall appear in the bulletin in relation to the registration of the breeder’s right:
Is it possible to lodge an objection against the registration? Third parties may lodge, within 30 days from the date on which the breeder’s right is published on the Bulletin, an objection to the grant of a right on the grounds that there were deficiencies in the procedures laid down in related articles. During the course of examination conducted by the General Directorate, if it is established that one of the procedures for granting the right has not been fulfilled, or a significant deficiency occurred in procedures, the General Directorate may decide on that the granting procedure is invalid and go back to the point of procedure where the deficiency occurs. What are the fees to be paid as from registration? Upon registration of the breeder’s right on new plant variety, an annual fee should be paid by the right holder to the General Directorate in advance in January as for each year of the duration of the protection. If the annual fees are not paid within the determined periods, the breeder’s right shall automatically expire. In such a case, it shall be deemed that annual fee was effected as of the payment deadline. This will be published in the bulletin within thirty days. Is it possible to re-validate the protection right upon claiming force-majeure? If the breeder’s right has terminated because the annual fee was not paid within the periods laid down, the termination shall be effective as of the deadline for the annual fee; however, if the right holder communicates to the General Directorate, in writing within six months from the publication of the termination in the bulletin that the failure to pay the annual fee was attributable to the force major events, the breeder’s right shall resume to be valid and enforceable provided that annual fee is paid in such sum and in accordance with such terms laid down by the General Directorate. General Directorate shall publish the force major notice in the immediately next bulletin. Any concerned party may communicate its opinions to the General Directorate in writing within thirty days following the publication of the force major notice in the bulletin. General Directorate shall consider the application for the force major and the opinions of the concerned parties on a joint basis and then reach a decision. The General Directorate shall be authorized to restore the breeder’s right in force. Where the General Directorate acknowledges the presence of a force major event, the right shall be restored as of the payment date provided that annual fee is paid. The restoration of the right into the force shall be registered with the log and entered with the bulletin. What are the obligations of the rightholder after grant? The right holder is responsible for the continuing existence unaltered of the protected variety or, as the case may be, of the propagation materials retaining their hereditary characteristics as long as the right is in force. The General Directorate investigates whether, within the protection period, the variety or where appropriate its genetic parts are maintained. The right-holder, upon the request of the General Directorate, is obliged to provide information, documents and material necessary to assess the continuing maintenance of genetic forms of the variety to the General Directorate or an institution designated by General Directorate. When there are suspicions about the maintenance of genetic form of the variety and these suspicions cannot be eliminated by the information, document and material provided by the right-holder the General Directorate may request an examination to be conducted for maintenance of genetic forms of the variety. This examination shall constitute the comparison between material submitted by the holder and samples and information on the characteristics document of the variety, by conducting growing and other tests. When the examination conducted indicates that the right-holder failed in the maintenance of genetic form of the variety concerned, the observation of the holder shall be requested before cancellation of breeder’s right. Is it possible for ex-officio cancellation of the protection right by the general directorate? Where it is established that the right-holder does not provide the General Directorate with the required documentation, testing material within the determined time limit or fails to fulfill the requirements after grant or the variety has lost its uniformity and stability characteristics, breeder’s right may be ex-officio cancelled by the General Directorate. The protection right may also be ex-officio cancelled in cases where although Court has cancelled the variety denomination, the right-holder did not propose a new denomination for the variety, within the time limit specified by the Ministry. Cancellation of breeder’s right shall enter into force from the date of registration in the Register. Cancellation decision shall be published on the bulletin within 30 days from the date of its entry in the Register. What are the rights conferred to the right-holder as from registration? Breeder’s right confers on the holder following exclusive rights for protection of the variety:
The exclusive rights shall also apply in relation to the varieties:
In case of breeders more than one person, the entitlement shall be vested jointly in them provided that there is no contrary agreement between respective parties. Each holder of the right is entitled to do following on his own right, independently of other shareholders:
Does the breeder’s right provide any authority/right to the applicant before grant? The applicant has the rights/authorities mentioned above between the date of application and date of grant. How is the relationship between the employee and the right-holder arranged? Where the varieties are bred or discovered and developed by employees during the execution of their duties, the breeder’s right shall be vested in their employers unless otherwise provided by the contract or understood from the nature of the work. The breeder’s right shall be vested in the employers for the variety that has been bred, discovered or developed by the employee, using the information and equipment available at work, who were not required by the contract. The employees who bred or discovered and developed the varieties may claim a certain amount of remuneration determined by breeder and employer by taking into account the economic value of the variety. When the parties do not agree on the level of remuneration, it shall be decided by the Court. The parties may determine the level beforehand and so include in the contract. What are the restrictions of the right-holder? Breeder’s rights shall not extend to the following acts:
Is the right-holder obliged to use/exploit the protected variety? Which documents can be submitted to prove the use of the protected variety? The right holder, or its authorized representative is obliged to exploit the propagation material of the protected variety. The compulsory exploitation/use should be realized within three years from the date on which the grant of the breeder’s right has been published in the Bulletin. The documents proving that the protected variety is in exploitation may be those declarations showing that the protected variety is in exploitation in sufficient quality and quantity and they should be certified by the relevant professional associations, Chambers of Commerce/Industry or other relevant bodies. On the document proving that the variety is in exploitation should include the date and number of the grant of the breeder’s right for the protected variety, the date of the initial exploitation/use, the declarer’s name, address, signature, and the execution date of the document. What are the conditions for compulsory license? Breeder’s right may be subjected to compulsory license, at the end of the 3rd year from the grant of breeder’s right where commencement of exploitation of the protected variety, increasing its exploitation or spreading of its exploitation are of great importance for national defense or public health purposes; where the non exploitation of protected variety or its insufficient exploitation in terms of quality and quantity causes serious damage to the economic or technological development. Compulsory license shall be decided by the Council of Ministers upon the proposal of the Ministry of Agriculture. In case, where the exploitation of the protected variety is important for national defense or public health, the proposal is prepared jointly by the Ministry of Agriculture and Ministry of Defense or the Ministry of Health. Under which conditions the breeder’s right is deemed to be exhausted? The breeder’s rights will be considered as exhausted in cases where any material of the protected variety or a variety which a) is essentially derived from the protected variety, b) is not itself an essentially derived variety c) is not distinct from the protected variety d) whose production requires repeated use of the protected variety, or any material obtained from that material has been marketed/sold by the right-holder or by any third party with the consent of the right-holder in Turkey However, breeder’s right may be claimed in cases where acts involve further propagation of the variety in question or involve an export of materials (any kind of propagating material, harvested material including entire plants and parts of plants, any product obtained directly from the harvested material) for propagating purposes, to a country which does not protect varieties of the plant genus or species to which the variety belongs. If export material is for final consumption purposes again breeder’s right shall be considered as exhausted. Is it an obligation for the right-holder to effect recordal of any change following to registration in the registry? The right holder should communicate to the General Directorate, in writing the changes regarding his address and name, transfer of rights through assignment or merger, etc. following the registration date for the breeder’s right within 30 days after the change. The General Directorate effects the recordal of changes and these changes are published in the Bulletin. What are the required documents for recordal of assignment and transfer by inheritance?
What are the required documents for recordal of license? Contractual license may be granted on the exclusive or non-exclusive basis to be valid within the territory of Turkish Republic. License agreement shall be executed in writing. Licensee or licensor files an application for recordal of license with the General Directorate with the following documents for the validity of the license agreement.
What are the grounds for invalidity? The Court may declare the breeder’s right invalid in the presence of following grounds:
Who may request for invalidity of a breeder’s right? Persons with a legal interest, may request, within the period of protection of the right, from the court the invalidation of the right for the variety concerned. The request for invalidity claming that the application has been filed in the name of an authorized person can only be put forward by the actual/real right-holder. Does the decision for invalidity have a retroactive effect? A (Court) Decision ruling that the breeder’s right is invalid, will have retroactive effect and thus, within the context of invalidation, the legal protection secured under this Law shall be deemed not to have been borne at all. What are the causes for termination of the breeder’s right? A breeder’s right will terminate upon: a) expiry of the term of protection, b) surrender by the right-holder himself, c)non-payment of yearly fees and additional fees, within the prescribed time-periods. What are the acts constituting an infringement of the breeder’s right? The following acts shall be considered as infringement of breeder’s rights:
What may be the claims of a right-holder during legal proceedings? A holder of a right whose rights are infringed may, in particular, appeal to the Court for the following:
Is it possible to request for precautionary measures against third parties? Any person who has already instituted a proceeding may appeal the court to order precautionary measures provided that they can prove the existence of acts in Turkey of actual exploitation of the variety or serious and effective preparations to exploit it in Turkey which would constitute an infringement. The request for precautionary measures may be filed before or with the institution of proceedings or be filed later. The request for precautionary measures shall be examined separately from the proceeding. Precautionary measure shall be in nature to enable securing of the judgment and particularly provide the following:
What are the competent courts in case of a court action? The competent court, for the institution of legal proceedings by the holder, is the court of the domicile of the plaintiff or of the place where the offence was committed or of the place where the act of infringement produced effect. Where the plaintiff is not domiciled in Turkey, the competent court is Ankara courts The Competent Court, for the institution of proceedings by third parties against the applicant or the holder, is the court of domicile of the defendant. Where the applicant or patent right holder is not domiciled in Turkey, the provisions of the 3rd paragraph of this Article shall apply. Where several courts are competent, the court before which the proceedings are first initiated shall be the competent court. Where the Ministry is the plaintiff or defendant, the competent court is the court where the headquarters is located. What is the relationship between the law no. 308 for registration, control and certification of the seeds and the law no. 5042 for protection of breeder’s rights on new plant varieties? The aim of the law no. 5042 is to encourage the development of plant varieties and to ensure protection of new varieties and breeder’s rights. The right owner obtaining protection under the scope of this law has a right until the termination of the right with respect to the new variety. However, in order to market, sell or to produce the subject new variety in Turkey the requirements set by the Law no. 308 should be met by the right owner. The aim of the law no. 308 is to maintain the variety and purity of the seeds, protect the physical characteristics thereof and to provide the farmers with the guaranteed seeds with high quality through control and certification of all seeds which are sold, marketed, put into circulation in Turkey or export or import into Turkey. The registration proceedings are run to describe the characteristics of the seeds and certification proceedings are carried out to determine whether the characteristics described during registration are effectively and duly realized. |
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