Communication from the Ministry of Foreign Affairs No. 68 / 1994 Coll.
Communication from the Ministry of Foreign Affairs on access by the Czech and Slovak Federal Republic to the International Convention for the Protection of New Varieties of Plants of 2 December 1961, as revised in Geneva on 10 November 1972 and 23 October 1978
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International Treaty
Effective from 04.12.1991
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11.04.1994
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68
COMMUNICATION
Ministry of Foreign Affairs
The Ministry of Foreign Affairs announces that the International Convention for the Protection of New Varieties of Plants, revised in Geneva on 10 November 1972 and 23 October 1978, was negotiated in Paris on 2 December 1961.
The Charter on access by the Czech and Slovak Federal Republic to the International Convention for the Protection of New Varieties of Plants, revised in Geneva on 10 November 1972 and 23 October 1978, was deposited with the depositary of the Convention - Secretary-General of the International Union for the Protection of New Varieties of Plants (UPOV) on 4 November 1991.
The International Convention for the Protection of New Varieties of Plants, revised in Geneva on 10 November 1972 and 23 October 1978, entered into force on 8 November 1981 pursuant to Article 33 (1) thereof. For the Czech and Slovak Federal Republic it entered into force on 4 December 1991 on the same Article (2).
On 12 January 1993 the Czech Republic deposited with the Secretary-General of the International Union for the Protection of New Varieties of Plants a declaration of 1 January 1993 "that the International Convention for the Protection of New Varieties of Plants, revised in Geneva on 10 November 1972 and 23 October 1978, will continue to apply in the Czech Republic '. The depositary of the Convention confirmed its continued validity for the Czech Republic on 1 January 1993.
The Czech translation of the Convention is being announced simultaneously.
International Convention for the Protection of New Varieties of Plants
of 2 December 1961, as revised in Geneva
10 November 1972 and 23 October 1978
Contracting Parties
Considering that the International Convention for the Protection of New Varieties of Plants of 2 December 1961, as amended by the measure of 10 November 1972, has proved to be a useful instrument for international cooperation in the protection of breeders' rights,
confirming the principles contained in the preamble to this Convention, according to which:
(a) are convinced of the importance of protecting new varieties not only for the development of agriculture in their territories but also for the protection of the interests of breeders;
(b) are aware of the particular problems arising from the recognition and protection of the rights of breeders and, in particular, the restrictions which may arise from the requirements of the public interest in the free exercise of that right;
(c) consider it highly desirable that these problems, to which very many states rightly attest importance, be addressed by each State in accordance with uniform and clearly defined principles;
Considering that the idea of protecting the rights of breeders has received universal recognition in many States which have not yet acceded to the Convention,
Taking into account the need to make certain amendments to the Convention in order to facilitate their accession to the Union,
CONSIDERING that certain provisions concerning the administration of the Union contained in the Convention require addition in the light of experience; and
Believing that these objectives can best be achieved by revising the text of the Convention,
agree as follows:
Purpose of the Convention; establishment of the Union; seat of the Union
(1) The purpose of this Convention is to recognise and safeguard the breeder of a new plant variety or its successors in a legal title (both hereinafter referred to as "breeder") the right under the further defined conditions.
(2) The States participating in the Convention (hereinafter referred to as "the Member States of the Union") shall form the Union for the protection of new plant varieties.
(3) Geneva is the seat of the Union and its permanent bodies.
Forms of protection
(1) Each Member State of the Union may recognise the right of a breeder within the meaning of this Convention either by granting a special protection right or a patent. However, a Member State of the Union whose legislation permits protection under both of these forms may provide only one of them for one and the same botanical genus or species.
(2) Each Member State of the Union may restrict the application of the Convention within a given genus or species to varieties with a specific form of reproduction or reproduction or to certain final uses.
National action; reciprocity
(1) Without prejudice to the rights specifically recognised in this Convention, natural and legal persons, established or having a registered firm in one of the Member States of the Union, may, in respect of the recognition and protection of the right of the breeder, be granted the same procedure in another Member State of the Union which is approved or may then be approved under the relevant laws of that State in respect of its own nationals, provided that such persons comply with the conditions and regulations applicable to those nationals.
(2) Nationals of Member States of the Union who are not resident or registered in one of those States will also enjoy the same rights provided that they fulfil all the obligations which may be imposed on them in order that the varieties they have bred may be tested and their propagation checked.
(3) However, notwithstanding the provisions of paragraphs 1 and 2, any Member State of the Union, when applying the Convention to a particular genus or species, may restrict the benefits of protection to nationals of those Member States of the Union, applying the Convention to that genus or species, and to natural or legal persons residing or having a registered firm in any of those States.
Botanical genera and species which must or may be protected
(1) This Convention may be applied to all botanical genera and species.
(2) The Member States of the Union undertake to take all necessary measures to extend the application of the provisions of this Convention to as many botanical genera and species as possible.
(3) (a) Each Member State of the Union shall, after the entry into force of this Convention in its territory, apply the provisions of the Convention to at least five genera or species.
(b) Subsequently, each Member State of the Union shall apply that provision to further genera and species during the period following the date on which the Convention entered into force on its territory;
- for at least 10 genera or species in total during three years,
- for at least eighteen genera or species in total during six years,
- for at least 24 genera or species in total during eight years.
(c) If a Member State restricts the application of the Convention within a genus or species in accordance with the provisions of Article 2 (2), that genus or species, for the purposes of points (a) and (b), shall nevertheless be considered as one genus or species.
(4) At the request of any State which intends to ratify, accept, approve or accede to the Convention, the Council, having regard to the specific economic or environmental conditions of that State, may decide to reduce the minimum number required in paragraph 3 or may extend the period referred to in this paragraph or may reduce the number and extend the period.
(5) At the request of any Member State of the Union, the Council may decide to extend the period referred to in paragraph 3 (b) to that State, taking into account the specific difficulties encountered by the State in fulfilling its obligations under paragraph 3 (b).
Protected rights; scope of protection
(1) The right granted to the breeder is that its prior approval is required for:
- production for commercial sales,
- offer for sale,
- trading
reproductive material or material of vegetative propagation, as such, of the variety concerned. It is assumed that vegetative propagation material covers whole plants. The breeder's right shall be extended to ornamental plants or parts of such plants normally traded for purposes other than their own propagation where they are used for trade as propagation material for the production of ornamental plants or cut flowers.
(2) The consent given by the breeder may be subject to conditions which may be further established by it.
(3) The breeder's consent is not necessary either for the use of the variety as a source of variety for the purpose of creating or trading other varieties. On the other hand, this consent is required if the reuse of a variety is necessary for the commercial production of another variety.
(4) Each Member State of the Union may, either in accordance with its own laws or in the form of specific agreements referred to in Article 29, grant to breeders, for certain botanical genera or species, wider protection rights than those referred to in paragraph 1, and may, by name, extend them to the product being traded. A Member State of the Union which grants such a right may restrict it to nationals of Member States of the Union who grant the same rights to natural and legal persons residing or having a registered firm in one of those States.
Conditions required to obtain benefits from protection
(1) The breeder shall benefit from protection under this Convention only if the following conditions are met:
(a) irrespective of origin, artificial or natural, the source variety from which the variety originates must be clearly distinguishable by one or more characteristics from any other variety the existence of which is generally known at the time the application for protection is lodged. General knowledge may be characterised by reference to various facts, such as: existing cultivation and trade, an entry has already been made or an entry has been made in the official list of varieties, inclusion in the reference collection of varieties or a precise description of it has been published in the publication. The characteristics, allowing the definition and distinction of the variety, must be suitable for its precise recognition and description,
(b) on the date on which the application for protection was lodged in the Member State concerned, the variety:
- may not - or where the law of that State so permits for more than one year - be offered for sale or be the subject of trade with the consent of the breeder in that State, and
- may not be offered for sale or be the subject of trade with the consent of the breeder in the territory of any other State for more than six years in the case of vines, forest trees, fruit trees and ornamental trees, including their rootstocks or for more than four years in the case of all other plants.
The trials of a variety which do not involve an offer for sale or trade shall not affect the protection right. The fact that the variety has become generally known by means other than an offer for sale or trade does not affect the breeder's right of protection,
(c) the variety must be sufficiently homogeneous, taking into account the particular characteristics of its generative reproduction or vegetative propagation;
(d) the variety must show stability in its essential characteristics, that is to say that it must comply with its description after repeated reproduction or propagation or where the breeder has defined a specific cycle of reproduction or reproduction at the end of each such cycle;
(e) the variety must be given its name as referred to in Article 13.
(2) Where the breeder has complied with the provisions laid down in the legislation of the Member State of the Union in which the application for protection has been lodged, including the levying of a fee, the grant of protection may not be subject to any conditions other than those laid down in the above provisions.
Official examination of varieties; interim protection
(1) Protection shall be approved after examination of the variety in accordance with the criteria referred to in Article 6. Such testing shall be appropriate for each genus or species.
(2) For the purposes of such tests, the competent authorities of each Member State of the Union may require the breeder to supply all necessary information, documents, propagating material or seeds.
(3) Any Member State of the Union may take measures to protect the breeder against fraud and the harmful behaviour of third parties which would have taken place between the submission of the application for protection and the decision on that protection.
Duration of protection
The right granted to the breeder shall be granted for a limited period. This period may not be less than 15 years from the date of the decision on protection. For vines, forest trees, fruit trees and ornamental trees, including their roots, the duration of protection cannot be less than 18 years, calculated from the date of the decision on protection.
Restrictions on the exercise of protection rights
(1) The free exercise of the exclusive right conferred on the breeder cannot be restricted other than for reasons of public interest.
(2) Where any such restriction is made to ensure a wide distribution of the variety, the relevant Union Member State shall take all necessary measures to ensure that the breeder receives adequate compensation.
Repeal and forfeiture of protection rights
(1) The right of the breeder shall be revoked and declared invalid in accordance with the provisions of the law of each of the Member States of the Union where it is established that the conditions laid down in Article 6 (1) (a) and (b) have not in fact been fulfilled at the time when the protection decision was issued.
(2) The breeder's right shall be forfeited if he is unable to submit to the competent authority reproductive or propagation material capable of producing a variety with its characteristics, which were defined, at the time of granting of protection.
(3) A breeder may be deprived of the right if:
(a) shall not, as required and within a given period of time, supply the competent authority with any reproductive or propagation material, documentation and information deemed necessary for the control of the variety, or allow the examination of the measures taken to maintain the variety; or
(b) has not paid the fees due to maintain the exercise of its rights within the prescribed period.
(4) The breeder cannot be deprived of that right for other reasons than those referred to in this Article.
Free selection of the Member State of the Union in which the first application is submitted; applications for protection in other Union States; independence of protection in the various states of the Union
(1) The breeder may choose the Member State of the Union in which he wishes to submit his first request for protection.
(2) The breeder may submit an application for protection of his right to other Member States without awaiting a decision granting the right of protection by the Member State of the Union in which he made his first application.
(3) The protection applied for in the various Member States of the Union by a natural or legal person entitled to benefit from this Convention does not depend on the right of protection granted for the same variety in other States, whether or not those States are members of the Union.
Right of priority
(1) A nobleman who has duly submitted an application for protection in one of the Member States of the Union shall, for the purposes of applying in another Member State of the Union, enjoy the right of priority for a period of 12 months. This period shall be calculated from the date of submission of the first application. The day of administration shall not count for this period.
(2) In order to benefit from the provisions of paragraph 1, a request for priority of the first application shall be made in the subsequent submission of an application for protection and, within three months, a copy of the document constituting the application shall be certified as a true copy by the authority which accepted it.
(3) A nobleman may be allowed a further period of four years after the priority period, in which he shall supply the Member State of the Union to which he has submitted an application for protection pursuant to paragraph 2 with the additional documentation and materials required by the laws and regulations of that State. That State may require that additional dossiers and materials be transmitted within a reasonable period of time where the application for priority is rejected or withdrawn.
(4) Such facts, such as the submission of a further application or publication of the case or the use thereof by the applicant during the period referred to in paragraph 1, shall not constitute a factual basis for objections to an application submitted in accordance with the previous conditions. Such facts cannot be a title for the creation of a right for the benefit of a third party or for the creation of any right of personal ownership.
Variety name
(1) The variety must have a name serving as a designation of its birth mark. Each Member State of the Union shall ensure, in accordance with paragraph 4, that no rights with regard to a designation which is registered as a variety name do not interfere with the free use of the variety name, even after the period of protection has expired.
(2) The name must enable the variety to be identified. It shall not be composed solely of figures, except where this is established practice for the labelling of varieties. The name shall not lead to erroneous conclusions or errors in the characteristics, value or identity of the variety or identity of the breeder. In particular, the name must be different from any name which it identifies, in any State of the Union, in any existing variety of the same botanical species or closely related species.
(3) The variety name shall be submitted by the breeder to the competent authority in accordance with Article 30 (1) (b). Where it is found that that name does not comply with the requirements of paragraph 2, the competent authority shall refuse to register it and shall ask the breeder to propose a different name within a specified period. The name shall be registered on the same date as the decision on protection shall be taken in accordance with the provisions of Article 7.
(4) Prior rights of third parties shall not be affected. Where, as a result of a prior right, the use of a variety name is prohibited by a person who would be obliged to use that name under the provisions of paragraph 7, the authority referred to in Article 30 (1) (b) shall ask the breeder to submit a different name for that variety.
(5) The variety concerned must be kept in the Member States of the Union under the same name. The authority referred to in Article 30 (1) (b) shall register that name unless it is deemed inappropriate in that State. In that case, it may ask the breeder to submit a different name.
(6) The authority referred to in Article 30 (1) (b) shall ensure that all other such authorities are informed of the name of the varieties, in particular of submissions, registration and cancellation of the name. Any competent authority referred to in Article 30 (1) (b) may submit comments on the registration, if any, to the authority which notified the name.
(7) Any person who, in a Member State of the Union, offers for sale or trades in reproductive or vegetative material of a variety protected in that State shall be required to use the name of that variety, even after the expiry of the protection period of that variety, provided that, in accordance with paragraph 4, prior rights do not prevent such use.
(8) Where a variety is offered on the market or traded, it shall be permitted to combine the trade mark, trade name or other similar indications with the registered variety name. However, even if such a combination of indications occurs, the variety name must be easily identifiable.
Protection independently of measures governing production, control and trade
(1) The right granted by the breeder in accordance with the provisions of this Convention shall not depend on the measures taken by each Member State of the Union to regulate the production, control and marketing of seeds and plants of propagating material.
(2) Such measures shall also, where possible, not prevent the application of the provisions of this Convention.
Union institutions
The Union's permanent bodies shall be:
(a) the Council,
(b) the Secretariat-General, bearing the name of the Office of the International Union for the Protection of New Varieties of Plants.
Composition of the Board; number of votes
(1) The Council shall be composed of representatives of the Member States of the Union. Each Member State shall appoint one representative to the Council and one alternate member.
(2) Representatives or advisers may accompany the representative or alternate members.
(3) Each Member State of the Union shall have one vote in the Council.
Observers at Council meetings
(1) States which are not members of the Union but which have signed this document shall be invited to the Council meetings as observers.
(2) Other observers or experts may be invited to such meetings.
President and Vice-President of the Council
(1) The Council may elect from among its members the President and the first Vice-President, other Vice-Presidents. The first Vice President shall replace the President if he is unable to perform his duties.
(2) The term of office of the President shall be three years.
Council meetings
(1) The President shall convene the meetings of the Council.
(2) A proper Council meeting shall be held once a year. In addition, the President may convene the Council on his own initiative; It shall convene the Council within three months if one third of the members of the Union so request.
Council procedural rules; Union administrative and financial rules
The Council shall establish its procedural rules and administrative and financial rules of the Union.
Mission of the Council
The mission of the Council shall be:
(a) to study appropriate measures to ensure the interest and promotion of Union development;
(b) appoint a Secretary-General and, where necessary, a representative of the Secretary-General and lay down for each of the conditions and periods of office;
(c) review the annual activity report of the Union and determine its future activities;
(d) to transmit to the Secretary-General whose functions are laid down in Article 23 all necessary instructions for the performance of the Union's tasks;
(e) examine and approve the Union budget and determine the contribution of each Member State of the Union in accordance with the provisions of Article 26;
(f) examine and approve the accounts submitted by the Secretary-General;
(g) establish, in accordance with Article 27, the date and place of the conferences covered by this Article and take the measures necessary for their preparation; and
(h) decide on all issues to ensure the effective functioning of the Union.
Most of the votes required for the Council decision
All decisions of the Council shall be taken by a simple majority of the members present and voting; Council decisions pursuant to Articles 4 (4), 20, 21 (e), 26 (5) (b), 27 (1), 28 (3) or 32 (3) require three quarters of the votes of the members present and voting. Abstentions are not considered votes.
Tasks of the Union Office; responsibilities of the Secretary-General; Appointment of officials
(1) The Office of the Union shall carry out all duties and tasks entrusted to the Board. The office is run by a general secretary.
(2) The Secretary-General shall be accountable to the Council. It shall ensure the implementation of the Council's decisions. It shall present the budget for approval to the Council and shall be responsible for its implementation. It shall submit an annual activity report to the Council on the Office and a report on the activities and financial situation of the Union.
(3) Pursuant to Article 21 (b), the conditions for the appointment and employment of the necessary number of officials for the effective performance of the tasks of the Office of the Union shall be determined on the basis of the administrative and financial rules referred to in Article 20.
Legal status
(1) The Union is a legal person.
(2) The Union shall enjoy in the territory of each Member State of the Union, in accordance with the laws of that State, such legal capacity as is necessary for the achievement of the Union's objectives and for the performance of their functions.
(3) The Union has concluded an Agreement with the Swiss Confederation on the seat of the Union Office.
Revision of accounts
Revision of the Union accounts shall be provided by one of the Member States of the Union in accordance with the administrative and financial rules referred to in Article 20. Such a state, with its consent, shall be designated by the Council.
Finance
(1) Union expenditure is covered by:
- the annual contributions of the Member States,
- payments received for services rendered,
- various receipts.
(2)
(a) The share of each Member State of the Union in the total amount of annual contributions shall be determined in such a way that the total costs are covered by contributions from the Member States of the Union and taking into account the contribution units referred to in paragraph 3. That proportion shall be calculated in accordance with paragraph 4,
(b) the number of contribution units shall be expressed in whole numbers or fractions thereof, provided that such number is not less than one fifth.
(3)
(a) For any State which is a Member State of the Union at the date on which this document becomes valid in relation to that State, the number of contribution units belonging to that State shall remain the same as that immediately before that date, i.e. under the 1961 Convention and its supplemented 1972 text;
(b) any other State shall notify, upon accession to the Union, by a declaration addressed to the Secretary-General, the number of contribution units that apply to it;
(c) each Member State of the Union may at any time notify, in a declaration addressed to the Secretary-General, the number of contribution units which is different from that applicable to that State under paragraph (a) or (b). Such a declaration, if made during the first six months of the calendar year, shall be effective from the beginning of the following calendar year; otherwise it shall become effective from the beginning of the second calendar year following the year in which the declaration was made.
(4)
(a) For each budget period, the amount corresponding to one contribution unit shall be determined by dividing the total amount of expenditure to be covered by contributions from the Member States of the Union by the total number of units allocated to them;
(b) the amount of the contribution of each Member State of the Union shall be calculated by multiplying the amount corresponding to one contribution unit by the number of contribution units attributable to that State.
(5)
(a) A Member State of the Union which is late in paying its contributions may not exercise the right to vote in the Council under paragraph (b) if the amount of its arrears is equal to or exceeds the amount of its contributions owed by the State for the previous two calendar years. The suspension of a voting right shall not relieve such State of its obligations under this Convention and shall not deprive it of any other right within the meaning of this Convention,
(b) The Council may authorise such a State to continue exercising the right to vote if the Council is satisfied that the delay in payment of the contribution was due to exceptional or unavoidable circumstances.
Revision of the text of the Convention
(1) The text of this Convention may be revised by the Conference of the Member States of the Union. The Council shall decide to convene such a conference.
(2) The meeting of the conference shall be valid only if at least one half of the Member States of the Union are present at the conference. A majority of five-sixth of the Member States of the Union present at the Conference are required to adopt the revised text of the Convention.
Languages used by the Office and at Council meetings
(1) The Union Office shall use English, French and German in the performance of its duties.
(2) The meetings of the Council and the Review Conference are held in the three languages.
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Regulation Information
| Citation | Communication from the Ministry of Foreign Affairs No. 68 / 1994 Coll., on access of the Czech and Slovak Federal Republic to the International Convention for the Protection of New Varieties of Plants of 2 December 1961, as revised in Geneva on 10 November 1972 and 23 October 1978 |
|---|---|
| Regulation Type | International Treaty |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 11.04.1994 |
|---|---|
| Effective from | 04.12.1991 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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