Protection of Breeder’s Rights of New Plant Varieties in Turkey
Turkey enacted Law No. 5042 on the Protection of Breeder’s Rights of New Varieties of Plants (“Law”)[1] and its implementing regulation the Regulation on Protection of Breeder’s Rights of New Plant Varieties of Plants (“Regulation”), which came into force 15 January 2004 and 12 August 2004 respectively. The Law and Regulation reflect the provisions of the International Convention for the Protection of New Varieties of Plants (“UPOV Convention”). In fact, Turkey became a member of UPOV on the 18November 2007.
Since the enactment of the legislation, the number of filings for the registration of breeder’s rights increased each year. As of end 2019, the Ministry of Agriculture and Forestry (“Ministry”) received 2214 applications and granted protection for 1978 applications[2]. This article aims to give an overview of the Turkish legislation and practice related to the protection of breeder’s rights.
1. Who can apply for protection?
Turkish citizens or real persons and legal entities resident in Turkey or parties that have right of application for protection of breeder’s rights under UPOV Convention shall have the right to apply for breeder’s rights in Turkey. The application can be done by the breeder or its authorized representative.
2. What are the conditions for protection?
The breeder’s rights are granted upon application to the Ministry if the variety is new, distinct, uniform and stable.
Out of these conditions, novelty criterion should be given specific attention as the majority of the applications that were denied protection by the Ministry had been rejected based on not fulfilling the novelty condition. Novelty criterion as defined in the Law is as follows; a variety shall be deemed novel if at the date of filing of the application the propagating or harvested material of the variety has not been sold or disposed of to others by or with the consent of the breeder (i) in Turkey earlier than one year before the date of application (ii) in other countries earlier than four years (six years for trees and vines) before the date of application. The Law explicitly provides that legal actions taken for biosafety purposes or registration of the variety to the official records for commercialization or actions taken for similar legal requirements do not affect novelty. A Ministry decision rejecting an application 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 favour 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[3].
3. What is the scope, procedure and term of protection?
In the event that breeder’s rights are granted, the following acts in respect of propagating material of the protected variety shall require the authorization of the breeder:
a) Production or multiplication
b) Conditions for the purpose of propagation
c) Offering for sale
d) Selling or other marketing
e) Exporting
f) Importing
g) Stocking
The breeder may register the variety under the name it chooses. Should the variety is registered in a UPOV country, the application has to be made with the same name.
All of the properly filed applications are published by the Ministry officially in a bulletin. Objections against the applications may be filed before the Ministry on limited grounds within three months after the date of publication.
The period of protection is 25 years as from the date of registration. The period of protection for trees, vines and potato is 30 years.
4. Is there a right of priority?
In case the applicant or its successors have made an application in a country party to UPOV and twelve months has not been passed as from the date of application, right of priority shall be granted in their application in Turkey and the date of application in the UPOV country shall be deemed as date of application in Turkey. In order to be granted right of priority, this demand has to be stated in the application in Turkey.
5. What are the legal rights in case of infringement?
In the event of any infringement of breeder’s rights, the breeder shall have the right to ask the courts to stop infringement immediately, to seize the production, ask compensation for material and immaterial damages (including loss of profit). Apart from the civil liability, the infringement shall result in criminal liability as well. More and more infringement cases are filed before Turkish courts based on the Law. Majority of the cases are for compensation for material and immaterial damages. The proof of material damages may sometimes be difficult. Nevertheless in cases where infringement is proved, the courts tend to order compensation for immaterial damages even if the material damages may not be proved[4].
6. Concluding remarks
The number of applications filed before the Ministry for the protection of plant breeder’s rights increase gradually. On the other hand it is noted that some of the breeder’s 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[5]. It is, therefore, expected that the number of applications will increase more rapidly as the awareness rises over the years. Another factor that will increase the number of applications is the efficiency of the legal system in handling infringements. The reported court decisions indicate that the courts enforce the protection granted by the Law with increased efficiency, which is likely to motivate more applications for plant breeder’s rights
This Article aims to provide a brief and general overview of the protection of plant breeder’s rights in Turkey, 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.
[1] Law No. 5042 on the Protection of Breeder’s Rights of New Varieties of Plants published in the Turkish Official Gazette dated 15.01.2004 Numbered: 2534
[2] Plant Breeder’s Rights Report dated 2019 issued by the Ministry of Agriculture and Forestry, Department of Plant Production
[3] 11th Chamber of Court of Cassation File No: 2018/915 Decision No: 2019/2716 Decision Date: 08.04.2019
[4] See for example 11th Chamber of Court of Cassation File No: 2016/13185 Decision No: 2017/7220 Decision Date: 13.12.2017
[5] Plant Breeder’s Rights Report dated 2019 issued by the Ministry of Agriculture and Forestry, Department of Plant Production
