COMPETENT COURTS ON ACTIONS AGAINST MINISTERIAL DECREES CONCERNING PLANT VARIETY IN TURKEY
Courts for Intellectual and Industrial Rights(herein after "the specialized courts") have jurisdiction over actions which are stated in Law for the Plant Variety Protection(Law No. 5042) in Turkey. Nevertheless the competent court is undetermined on application and registration process. Shall the competent court be the specialized courts or administrative courts on actions against ministerial acts and board decisions when the specialized courts have jurisdiction over actions on the protection of rights stage? Turkish Law has no explicitness on this subject.
Both 11th Circuit of Court of Cassation and intermediate courts of appeal have concluded that "breeders' rights are included in intellectual and industrial rights and therefore disputes on this subject must be resolved by the specialized courts."
Disputes in ministerial application and registration process with regard to breeders' rights and on board decisions shall be resolved by the specialized courts.
The court at the domicile of claimant have a territorial jurisdiction over these actions. If the claimant does not have a domicile in Turkey, the specialized court at Ankara shall have a territorial jurisdiction.
All disputes concerning breeders' rights such as actions against Turkish Patent and Trademark Office decisions shall be resolved by the specialized courts.
HOW DOES OBTAINING PRODUCTION PERMIT FOR PLANT VARIETY AND ENTERING THE NATIONAL LIST OF PLANT VARIETIES AFFECT THE NOVELTY?
According to the fifth article of Law for the Plant Variety Protection the variety shall be 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.
Could obtaining production permit and authorization of sale and entering the National List of Plant Varieties affect the novelty characteristic of plant or be deemed disposed of to public?
An application for registration of rightholder from abroad was rejected by Ministry(i.e. Ministry of Food, Agriculture and Livestock) on the grounds that the variety was not new because production permit and authorization of sale had been obtained for this plant variety long before the application and the variety had entered the National List of Plant Varieties in Turkey.
The specialized court and intermediate courts of appeal have concluded that legal actions made for the purpose of biological security and activities that are resultant of legal obligations do not affect the novelty charactheristic of plant variety. The courts referred to the UPOV Convention in their precedents and have concluded that the novelty charactheristic of variety shall only be abolished if the variety is sold, or given, to another persons for usage.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.