Court practice in violation of the plant varieties rights


 patent Civil Code of Ukraine and the Law of Ukraine ‘On the Protection of Plant Varieties’ determines that plant varieties property rights in case of infringement can be protected by court.
Court considers such issues as arguments for granting rights to variety and its state registration; disputes on varieties which are created in connection with the official duties; variety’s authorship; payments and rewards to the authors; conclusion and execution of license agreements; determine the owner of the variety, invalidation of plant varieties rights; early rights termination; violation of personal property and non-property rights of the plant variety owner and so on.
Despite this, while analyzing court decisions, we can conclude that Ukrainian judicial branch is not ready to consider issues related to intellectual property rights violation for plant varieties.

Unfortunately, there are no patent courts in Ukraine and general courts sometimes refuse to consider such violations.
According to practice, lawsuits regarding invalidation of the contract (supply, sale, license) are frequent. The second popular question is recovery of author’s rewards.

Analyzing court practice of plant varieties, we want to focus on some important aspects.
Be cautious in concluding license agreements and sales contracts for seeds and planting material of certain plant variety.
In accordance with Article 18 of Law of Ukraine ‘On the seeds and planting’ seeds and planting material can be used into circulation after their recognition by state controls. Pay attention that seeds are considered to be accepted if they belong to listed in the Plant Varieties Register of Ukraine. If under the contract planting material, which is not listed in the Register should be sold or provided for use, such contractual relationship are invalid.
Such example is the lawsuit №14/10pd (27 July 2005) on the claim of agricultural society LLC ‘LUGAGRODAR’ to subsidiary 'Rise-Agroservis' on the recognition of the sale contract №1043914 02/09/03 invalid, or the case № 915/544/14 (1 July 2014) of Private Agricultural leased enterprise 'Agrosvit' to an individual-entrepreneur to invalidate the agreement of purchase and sale of sunflower seeds №3 01/04/2011.

However, it is not always necessary to invalidate contracts in such cases. Of course, there are exceptions, for example, the case № 5011-9/4265-2012 (24.04.2012), about invalidation of agreement on the cultivation of treated seeds of the Styrian oil pumpkin between private enterprise 'Ekaterina' and LLC 'Goldenkern.'
According to materials of the case while receiving quarantine certificate from the State Plant Quarantine Inspection, you can use the seeds when sending, receiving and using goods in quarantine: growing seeds for commodity products, followed by its export.

Interesting is situation with State Reserve Seed Fund of Ukraine, which is regulated by special laws, in particular the Law of Ukraine ‘On the government procurement’, the 'Order of formation, storage and use of state reserve seed stock', which are not related to intellectual property rights on plant varieties.
Obtaining by this structure defined property rights of seeds for further order is not required. To check on practice turn to lawsuit 6/51/2011/5003 (May 12, 2011) from private agricultural enterprise 'Elite' to the State Enterprise 'State Reserve Seed Fund of Ukraine' about invalidation of the agreement on provision of seed storage number C 31/08/10.

Unfortunately, the court precedents on the protection of authorship for plant varieties are not popular. But the authors should not be afraid to defend rights, since it is necessary to uphold authorship, liabilities of the future owner of rights on the variety to make with them an appropriate agreement on the transfer of property rights to the variety, and the vindication of the author's rewards.
For instance, such case is № 111/5571/2012 (June 17, 2013) on the recovery of rewards to the author, who worked as a senior agronomist in a private limited company 'Crimean Fruit Company.' Author conducted plant breeding to develop new varieties of fruit crops under contract with the employer. In this case the state registration was important. The fact of the information in the Register of varieties of registration of the variety, is enough proof of authorship, even if the author doesn’t have the certificate on the variety.

It is important to note that Article 17 of the Law of Ukraine 'On the Protection of Plant Varieties' provides the obligation for the employer within 60 days from the date of notification receipt with a written agreement on the amount and terms of payment of equitable remuneration to the author in accordance with the economic value of the variety and the other benefits the employer. This is an additional guarantee for the author. The obligation of compensation for author can be viewed in the case № 2-1/10 (September 23, 2010).

Article 53 of the Law of Ukraine ‘On the Protection of Plant Varieties’ provides protection for rights with pecuniary damage. Person whose rights have been violated by variety, may seek recovery of losses caused, including the income decrease.
According to Article 55 of the Law of Ukraine ‘On the Protection of Plant Varieties’ the court may decide to recover from the offender regarding a plant variety compensation ranging from 10 to 50,000 minimal wages. In this case, the recovery of compensation is a type of liability for copyright infringement on the grade, which is used as an alternative way, in case of failure to accurately calculate incurred in connection with the offense of damage and the size of the income received by infringe.

Despite the insufficient court practice on issues relating to plant varieties that we have in Ukraine, we should break barriers to defend our rights. We have to do precedents ourselves.

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