Elisavet Yakovidis Çinlemez May 23 2022 Plant breeders' rights in Turkey Deriş Patents and Trademarks Agency | Intellectual Property - Turkey Elisavet Yakovidis Çinlemez Intellectual Property IntroductionRegistration of plant variety rightsProtection termBenefits granted by plant breeder's rightsPost-grant responsibilities of rights ownersCommentIntroductionThe International Union for the Protection of New Varieties of Plants (UPOV) is an intergovernmental organisation located in Geneva that was established on 2 December 1961 by the UPOV Convention. The UPOV Convention entered into force on 10 August 1968 and was revised on 10 November 1972, 23 October 1978 and 19 March 1991 to reflect technological developments in plant breeding. The UPOV's mission 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 society.Turkey ratified the UPOV Convention on 18 November 2007. Turkish Law No. 5042 on the Protection of Breeder's Rights of New Plant Varieties was enacted on 15 January 2004, and its respective implementing regulation was enacted on 12 August 2004. Turkish legislation and practice on plant variety rights follows the UPOV and the relevant EU directives.This article provides a general outline of breeders' rights regulations and practice in Turkey.Registration of plant variety rightsApplications for plant breeder's rights can be submitted:electronically, through the UPOV Prisma tool; orphysically, before the General Directorate of Plant Production (BÜGEM). BÜGEM is the competent division of the Ministry of Agriculture and Forestry responsible for handling applications and registrations relating to plant variety rights.The Variety Registration and Seed Certification Centre (TTSM) is the competent division of the Ministry of Agriculture and Forestry responsible for:the technical examination of seeds and plants in respect of which a plant breeder's right application has been filed; andgranting production authorisations. A production authorisation is an administrative process that is independent of the plant breeder's right application.The registration of plant breeder's rights in Turkey consists of three stages: application and formal examination, substantive examination, and technical examination.Application and formal examinationTurkish 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 the UPOV Prisma tool for the preparation of the application, the petition for a plant breeder's right application must be filed in Turkish. Any supporting documents in a foreign language to be filed with the application must be translated into Turkish.The formal examination is conducted based on the application petition. It assesses the completeness of the required information, the priority claim documents and whether the official fees have been paid. If the application complies with the formal requirements, it will be accepted for substantive examination. If any corrections, additional information or extra documents are needed, the applicant is notified via an office action and given a non-extendable time limit of 30 days to overcome the deficiencies.Substantive examinationThe substantive examination stage assesses whether:the variety meets the novelty criterion. The application should be filed within:one year from the date of first national commercialisation;four years from the date of first commercialisation outside Turkey; orsix years from the date of first commercialisation outside Turkey for trees and vines;the applicant is entitled to file the application; andthe proposed denomination of the variety complies with the legal requirements and practices. The variety must be recognised when used together with trademarks, trade names and other similar signs.Denominations are rejected ex officio if there exists 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 pass the substantive examination are allocated an application number and are recorded on the registry. The applications are published within one month of being recorded in the registry in the variety bulletin, which is issued quarterly by BÜGEM. The bulletins are accessible here.Third-party oppositions to applications may be filed within three months from their publication in the bulletin based on the grounds that:the application does not meet the criteria of novelty;the application does not meet the criteria of distinctness, uniformity and stability (the DUS criteria);the applicant is not entitled to file the application; and/orthe denomination chosen for the variety is not appropriate.Oppositions are notified to the applicant, which must respond within three months. This can be extended for an additional two months. If the applicant fails to respond to the opposition, the application shall be deemed to be withdrawn. The applicant's response is notified to the opponent, which is given 30 days to inform BÜGEM about the continuation or discontinuation of the opposition.If 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 will conduct an examination on those issues. If the opposition is based on the ground that the DUS criteria are not met, such examination is conducted during the technical examination by the TTSM.Technical examinationThe technical examination:confirms whether the variety belongs to the designated botanical taxon;determines whether the variety meets the DUS criteria; andestablishes the variety description, which is a document indicating the morphological, physiological and technological features of the variety based on which the DUS report is issued.If a technical examination has already been conducted by an examination authority in a UPOV member state that has agricultural and climatic conditions similar to those of 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. If 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 current practice, the TTSM conducts the technical examination of the variety. If the technical examination is still pending in a UPOV member state at the time of filing the plant breeder's right application and the DUS report has not yet been issued, supporting documents evidencing that the examination is still pending are submitted with BÜGEM to avoid a new national technical examination being initiated. The finalisation of the examination phase in a UPOV member state shall be followed so that the DUS report can be submitted to BÜGEM, once completed, along with its Turkish translation.If, following the examination, a positive DUS report is prepared, the application proceeds to registration and a certificate of registration is issued to the rights owner. The registration is published in the bulletin within 30 days of the registration date. BÜGEM's decision may be challenged by third parties before the Ministry within 30 days from its publication in the bulletin.Protection termVarieties that are novel, satisfy the DUS criteria and have a denomination in line with the provisions of Turkish Law No. 5042 on the Protection of Breeder's Rights of New Plant Varieties and its implementing regulation are protected for 25 years from the date of registration. The protection period is 30 years for trees, vines and potatoes. The protection period ends at the end of the calendar year.Benefits granted by plant breeder's rightsDuring the protection period, the rights owner is exclusively authorised to:produce and propagate the variety;prepare the variety for propagation purposes;offer the variety for sale;sell or otherwise introduce the variety into the market;export or import the variety; andstore the variety.Post-grant responsibilities of rights ownersAnnuities 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 annuities. Failure to proceed with the payment of the annuities in a timely manner results in the breeder's right being lapsed, which is published in the bulletin.However, if the right owner provides evidence that the payment of the annuity was not paid in a timely manner for reasons of force majeure, the breeder's right is reactivated. Force majeure requests shall be filed within six months from the publication of the lapse of rights in the bulletin. Force majeure requests are also published in the bulletin; third parties may submit their observations within 30 days of their publication.During the protection period, the rights owner must ensure the persistence of the variety bearing the genetic structure and provide information, documents and samples to the Ministry to enable it to conduct inspections and assessments. If the rights owner fails to comply with these 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.CommentPlant breeder's rights are part of IP law and constitute an important IP right that remains somewhat on the side-lines compared with mainstream rights such as patents and trademarks. Various novelty and denomination issues need to be harmonised or improved, considering that 15-20% of prosecution issues concern denomination versus trademarks. This is mainly due to the lack of communication between BÜGEM, depending on the Ministry of Agriculture and Forestry, and the Turkish Patent and Trademark Office, depending on the Ministry of Industry and Technology.For further information on this topic please contact Elisavet Yakovidis Çinlemez at Deriş Patents and Trademarks Agency by telephone (+90 212 252 6122) or email ([email protected]). The Deriş Patents and Trademarks Agency website can be accessed at www.deris.com.tr.