The International Union for the Protection of New Varieties of Plants (UPOV is the abbreviation for “Union pour la Protection des Obtentions Végétales”) is an intergovernmental organization located in Geneva which was established on December 2, 1961, by the UPOV Convention. The UPOV Convention has entered into force on August 10, 1968, and has been revised on November 10, 1972, on October 23, 1978, and on March 19, 1991, to reflect technological developments in plant breeding. The mission of UPOV is to provide and promote an effective system of plant variety protection with the aim of encouraging the development of new varieties of plants for the benefit of the society.
Turkey ratified the UPOV Convention on November 18, 2007.
The Turkish Law no. 5042 on the Protection of Breeder's Rights of New Plant Varieties was enacted on January 15, 2004, and its respective Implementing Regulation on August 12, 2004.
The Turkish legislation and practise are following UPOV and EU Directives.
This article aims to give a general outline of the breeders’ rights regulations and practise in Turkey.
- Registration of Plant Variety Rights (PVR)
The application for a Plant Breeder’s Right (PBR) can be submitted electronically through UPOV Prisma tool or physically before the General Directorate of Plant Production (BÜGEM) which is the competent division of the Ministry of Agriculture and Forestry for handling the application and registration.
There is also another competent division of the same Ministry, the Variety Registration and Seed Certification Center (TTSM) who has a double remit:
- the technical examination of seeds and plants in respect of which a PBR application has been filed;
- granting of “production authorizations”, which is an administrative process independent of the PBR application and with no effect on it.
The registration of PBR in Turkey consists of three stages:
a. Application and Formal Examination
Turkish citizens, nationals of UPOV member states, foreign nationals resident in Turkey and foreign nationals benefiting from reciprocity are allowed to file applications with BÜGEM.
Even when a language other than Turkish is selected in UPOV PRISMA tool for preparing the application, the petition for PBR application must be filed in Turkish. The supporting documents in the foreign language to be filed with the application must be translated into Turkish.
The formal examination is conducted based on the application petition and concerns the completeness of required information and of documents regarding priority claim and payment of official fees. If the application is in accordance with the formal requirements, it will be accepted for substantive examination. In case any corrections or additional information or documents are needed, the applicant is notified via an office action and given a time limit of thirty days (non-extendable) to overcome the deficiencies.
b. Substantive Examination
During the substantive examination stage, the following will be reviewed:
- whether the novelty criterion of the variety is met, namely the application should be filed within one year as from the date of first national commercialization, within four years as from the date of first commercialization outside Turkey and six years as from the date of first commercialization outside Turkey for trees and vines.
- whether the applicant is entitled to file the application,
- whether the proposed denomination of the variety complies with the legal requirements and practise which require that the variety is recognized when used together with trademarks, trade names and other similar signs.
- The denomination is ex-officio rejected over a prior identical trademark registration covering goods and services in class 31 for plant varieties in the Trademark Registry kept by the Turkish Patent and Trademark Office.
Varieties that have passed the substantive examination are allocated an application number and are recorded on the registry. The applications are published within one month following the recordal at the registry in the variety Bulletin quarterly issued by BÜGEM. The Bulletins are accessible from the following link.
Oppositions of third parties to the applications may be filed within three months as from the publication in the Bulletin based on the grounds that the variety in question:
- does not meet the criteria of novelty,
- does not meet the criteria of distinctness, uniformity, and stability (DUS criteria),
- the applicant is not entitled to file the application,
- the denomination chosen for the variety is not appropriate.
Oppositions are notified to the applicant to respond within three months, which can be extended to an additional period of two months. In case the applicant fails to respond to the opposition, the application shall be deemed withdrawn. The response of the applicant is notified to the opponent, who is given a thirty-day notice to inform BÜGEM about the continuation or discontinuation of the opposition.
In case the opponent insists on its opposition and the opposition is related to the novelty, denomination of the variety or the entitlement of the applicant, BÜGEM conducts the examination on those issues.
In case the opposition is based on the grounds that DUS criteria are not met, such examination is conducted during the technical examination by the TTSM.
c. Technical Examination
The technical examination is conducted for:
- confirming whether the variety belongs to the designated botanical taxon;
- determining whether the variety meets the DUS criteria; and
- preparing a variety description, which is a document indicating the morphological, physiological, and technological features of the variety based on which the DUS report is issued.
In case the technical examination is conducted by an examination authority in a UPOV member state, which has agricultural climatic conditions like Turkey, and the technical report issued by such member state is available and can be submitted to BÜGEM, the Turkish technical examination can be based on such report. In case no such report can be submitted, BÜGEM may appoint testing institutions to conduct the technical examination in Turkey. The technical examination can also be conducted by the applicant upon request.
Under the current practise, TTSM conducts the technical examination of the variety or in case the technical examination is still pending in an UPOV member state at the time of filing the PBR application and the DUS report has not been issued yet, supporting documents evidencing that the examination is still pending are submitted with BÜGEM to avoid a new national technical examination is initiated. The finalization of the examination phase in a UPOV member state shall be followed in order to submit the DUS report once completed with its Turkish translation before BUGEM.
If following the examinations, a positive DUS report is prepared, the application proceeds to registration and a certificate of registration of Breeder's Right is issued to the right owner. The registration is published in the Bulletin within thirty days as from the registration date. The decision of BÜGEM may be challenged by third parties before the Ministry within thirty days as from the publication in the Bulletin.
- Requirements for protection and protection term
The variety, which is novel, satisfies the DUS criteria and has a denomination in line with the provisions of said Law and its Implementing Regulation is protected for twenty-five years as from the date of registration. The protection period is thirty years for trees, vines, and potatoes.
The protection period ends at the end of the calendar year.
During the protection period, the right owner is exclusively authorized for the following acts:
a) production or propagation
b) preparation for propagation purposes
c) Offering for sale
d) Selling or otherwise introduction into the market marketing
e) Exporting or importing
- The post grant responsibilities of the right owner
The annuities must be paid at the end of January each year during the protection period of the variety. Neither an extension nor a grace period exists for the payment of the annuities. Failure to timely proceed with the payment of the annuities, the breeder’s right is lapsed and published in the Bulletin.
However, if the right owner brings evidence that the payment of the annuity has not been timely paid for reasons of force majeure, the breeder’s right is reactivated. The request for force majeure shall be filed within six months as from the publication of lapse in the Bulletin. The request for force majeure is also published in the Bulletin as from which third parties are allowed to submit their observations within 30 days.
During the protection period, the right owner is required to ensure the persistence of the variety bearing the genetic structure and to provide the information, documents, and sample to the Ministry to this effect, in order to allow them to conduct their inspection and assessment. If the right owner fails to comply with those requirements or it is established that the variety does not comply with the DUS criteria, the Ministry shall cancel ex-officio the breeder’s right.
COMMENTS and CONCLUSION: the PBR rights is a field of IP Law and is an important IP right which remains somewhat on the side-lines compared to mainstream rights such as patents and trademarks. There are novelty and denomination issues that need to be harmonized or improved, considering that 15-20% of prosecution issues concern denomination vs trademarks which is mainly due to the lack of communication between BÜGEM and the Turkish Patent and Trademark Office depending on different Ministries (the Ministry of Agriculture and Forestry for BÜGEM and the Ministry of Industry and Technology for the Turkish Patent and Trademark Office). Should you have any questions about PBR rights in Turkey and more information is needed about the Law or practices in this country, please do not hesitate to contact us.
Author: Elisavet Yakovidis Çinlemez