An Overview of Plant Variety Rights in Turkey
Plant variety rights regulations have been in place for over 15 years in Turkey. The number of applications for registration increases each year. Parallel to that we see more legal cases before the specialized courts. Here is an overview of the applicable regulations and the related practice on this subject in Turkey:
Current legislation:
Turkey enacted Law No. 5042 on the Protection of Breeder’s Rights of New Varieties of Plants (“Law”) on 15.01.2004. The Law is completely compatible with the Directives of the European Union numbered 2100/94/EC and 1768/95/EC. Along with the enactment of the Law, Turkey became a member of the International Union for the Protection of New Varieties of Plants (“UPOV”) on 18.11.2007.
Turkey’s practice within the Law is carried out equivalent to Community Plant Variety Office (“CPVO”). Through the collaboration between Turkey and CPVO, Turkey’s data regarding the breeder’s rights are transferred periodically to CPVO’s database.
According to the Plant Breeder’s Rights Report (“Report”) dated 2020 issued by the Ministry of Agriculture and Forestry (“Ministry”), Department of Plant Production, as of end 2020, the Ministry received 2518 applications and granted protection for 1710 applications.
It is still noted that some of the breeders fail to apply for protection under the Law due to a false belief that registration in the national list for commercialization of a variety would give them the same protection. A variety that is not under breeder’s right protection may be produced by anyone having the source material and commercial registration does not extend any protection against such infringement.
Current applications:
As of 2018, all of the species and genus of UPOV can be subject of plant breeder’s rights applications in Turkey. For the list of varieties subject to application you can visit the link https://www.upov.int/genie/species.xhtml.
As to classification of the applications according to plant groups, most applications and protected varieties are in the group of field plants. As to classification of the local applications according to species, most applications are wheat varieties applications followed by potato varieties applications. As to the foreign applications, 54% of the applications are made by the foreign breeders from all over the world mostly from Holland, USA, Spain, France, Germany, Italy, Israel, Australia.
The technical examinations of the varieties can be either conducted in Turkey or already conducted technical examinations and DUS results can be submitted in the application file. Sometimes the Ministry may decide to wait until completion of technical examinations conducted abroad.
Court cases:
According to the Law, plant breeder’s right infringement cases are dealt by specialized intellectual and industrial property rights courts. More and more infringement cases are filed before Turkish Courts based on the Law. The courts enforce the protection granted by the Law with increased efficiency.
Some of the recent court files regarding the matter are stated below:
- 11th Chamber of Cassation File No: 2020/5803, Decision No: 2021/4863, Decision Date: 08.06.2021
Technical expert reports constitute mostly the base of the court judgments regarding the infringement cases. In this infringement case, the Court orders a detailed technical investigation involving the DNA examinations of the related nectarine varieties, age examinations of each trees subject to infringement and chronological parcel examination where the trees were cultivated.
In this context, it should be noted that the Ministry is also ready to cooperate with the justice in order to compare the protected varieties with the varieties subject to infringement especially in the area of genetic analysis. This method serves to conclude the court cases quickly and properly.
- 11th Chamber of Cassation File No: 2020/5803, Decision No: 2021/4863, Decision Date: 08.06.2021
- 11th Chamber of Cassation File No: 2017/1172, Decision No: 2019/4, Decision Date: 02.01.2019
- 11th Chamber of Cassation File No: 2016/12325, Decision No: 2018/3785, Decision Date: 21.05.2018
- 11th Chamber of Cassation File No: 2015/15709, Decision No: 2016/9711, Decision Date: 20.12.2016
The Courts tend to order severe compensations once the infringement is proved. In these cases above where the applicants are the exclusive license holders of wheat varieties, the Court orders for material compensation against the infringer of the varieties.
- 11th Chamber of Cassation File No: 2018/915, Decision No: 2019/2716, Decision Date: 08.04.2019
A Ministry decision rejecting an application of a potato variety for not fulfilling novelty conditions on the grounds that production permit had been issued and variety in question had been registered at the national list were challenged before Turkish courts. The court accepted the case in favor of the applicant and cancelled the Ministry decision on the grounds that registration to the national list would not mean commercialization of the variety and would not affect novelty.
- 11th Chamber of Cassation File No: 2016/13185, Decision No: 2017/7220, Decision Date: 13.12.2017
This case is for the compensation for material and immaterial damages due to an infringement of breeder’s rights. The proof of material damages may sometimes be difficult. Nevertheless in this case where infringement is proved, the Court orders compensation for immaterial damages even if the material damages are not proved.
Concluding remarks:
The number of applications filed before the Ministry for the protection of plant breeder’s rights increase gradually. It is expected that the number of applications will increase more rapidly due to the awareness that registration in the Turkish National list for commercialization of a variety would not provide the breeder’s rights protection at the same time. Additionally, as is indicated above, the efficiency of the legal system in handling the infringements is increasing in the course of time.
It is noted that Turkey’s plant breeder’s rights practices compared to the countries that are simultaneously entered to the UPOV, set a pattern for several countries.
This Article aims to provide a brief and general overview of the Turkish trademark and patent law, but does not intended to serve as a legal advice. Before taking any action or relying on the information given, addressees of this Article should seek specific advice on the matters which concern them.
