The Plant Breeders' Rights (Amendment etc.) (EU Exit) Regulations 2019

PART 5 U.K. Other amendments

The 1997 Act U.K.

15.—(1) The 1997 Act is amended as follows.

(2) In section 9 (farm saved seed)—

(a) in subsection (3), after “liable ” insert “(subject to any contractual agreement entered into between the farmer and the holder of the plant breeders' rights)”;

(b) in subsection (4), for the words from “considered to be” to the end substitute “ a small farmer for the purposes of this section ”;

(c) for subsection (10) substitute—

“(10) In this section, “small farmer” means—

(a) in a case where the material referred to in subsection (3) is used for propagating potatoes, a farmer who grows potatoes in an area no bigger than that which would be needed to produce 185 tonnes of potatoes per harvest, and

(b) in a case where the material referred to in subsection (3) is used for propagating any other variety specified for the purpose of subsection (1), a farmer who grows that variety in an area no bigger than that which would be needed to produce 92 tonnes of cereals per harvest.”;

(d) omit subsection (12).

(3) In section 11 (duration), omit subsection (3)(a).

(4) In section 38 (interpretation of Part 1) omit the definition of “the Council Regulation”.

Commencement Information

I1 Reg. 15 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(1))

The Plant Breeders' Rights (Farm Saved Seed) (Specified Information) Regulations 1998 U.K.

16.—(1) The Plant Breeders' Rights (Farm Saved Seed) (Specified Information) Regulations 1998 M1 are amended as follows.

(2) In regulation 3 (information to be supplied by farmer), after paragraph (6), insert—

“(7) In this regulation, a person who is the owner of a holding may be treated by the relevant rights holder as the farmer.

(8) If the owner of the holding is not the farmer, the owner must supply the relevant rights holder with the name and address of the person who is the farmer.”.

(3) After regulation 5, insert—

“Evidence etc.

5A.— (1) A relevant rights holder (“the holder”) may request—

(a) a farmer who has provided information under regulation 3, or

(b) a seed processor who has provided information under regulation 4,

to provide the holder with evidence which supports that information.

(2) That evidence may take any of the following forms—

(a) the provision of documentary evidence (such as receipts, invoices or official labels);

(b) the specification of devices used for ensuring the identity of products processed;

(c) allowing land, or processing or storage facilities, to be visited;

(d) the provision of samples.”.

(4) In regulation 6 (period within which inquiry may be made) for “and 5” substitute “ , 5 and 5A ”.

Commencement Information

I2 Reg. 16 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(1))

Marginal Citations

M1 S.I. 1998/1026.

The Plant Breeders' Rights Regulations 1998 U.K.

17.—(1) The Plant Breeders' Rights Regulations 1998 are amended as follows.

(2) In regulation 12 (register of plant variety names and records of plant varieties), after paragraph (4) insert—

“(4A) If a variety name is accepted in the form of a code, that fact must be noted in the register.”.

(3) In regulation 16 (service of documents), in paragraphs (1) and (2), for “European Union” substitute “ United Kingdom ”.

(4) In regulation 17 (agency), for “European Union”, in both places where it occurs, substitute “ United Kingdom ”.

(5) After regulation 20, insert—

“Farm saved seed: determination of remuneration

20A.— (1) This regulation applies for the purpose of determining what constitutes equitable remuneration for the purposes of section 9(3) of the Act.

(2) The level of remuneration shall be sensibly lower than the amount charged for licensed production.

(3) If there has been no licensed production in the United Kingdom, the level of remuneration shall be sensibly lower than the amount which is normally included in the price of propagating material of the lowest category qualified for official certification of that variety.

(4) The level of remuneration is to be considered sensibly lower if it does not exceed the level necessary to establish or stabilise, as an economic factor determining the extent of the farmer's use of material in reliance on the exception in section 9(1), a reasonably balanced ratio between the use of licensed propagating material and the planting of the product of the harvest of the respective varieties covered by a plant breeders' right.

(5) A ratio is to be considered to be reasonably balanced for the purpose of paragraph (4) if it ensures that the holder obtains as a whole a legitimate compensation for the total use of his variety.

(6) “Licensed production” means the licensed production of propagating material of the lowest category qualified for official certification of the same variety.”.

Commencement Information

I3 Reg. 17 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(1))

The Plant Breeders' Rights (Information Notices) Regulations 1998 U.K.

18.  In relation to an existing EU right that by virtue of [F1 regulation 3(2)] is treated as a plant breeders' right, regulation 3(2)(d) of, and paragraph 4 of Part 1 of the Schedule to, the Plant Breeders' Rights (Information Notices) Regulations 1998 M2 have effect as if the references to rights being granted under the 1997 Act were references to rights granted under the Council Regulation before [F2 IP completion day].

Textual Amendments

F1 Words in reg. 18 substituted (31.12.2020 immediately before IP completion day) by The Animal Health, Invasive Alien Species, Plant Breeders’ Rights and Seeds (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/1220), regs. 1(2)(b), 8(6); 2020 c. 1, Sch. 5 para. 1(1)

F2 Words in reg. 18 substituted (31.12.2020 immediately before IP completion day) by The Plant Breeders Rights (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/769), regs. 1(2)(b), 2(2)

Commencement Information

I4 Reg. 18 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(1))

Marginal Citations

M2 S.I. 1998/1024.

The Plant Breeders' Rights (Naming and Fees) Regulations 2006 U.K.

19.—(1) Regulation 3 of the Plant Breeders' Rights (Naming and Fees) Regulations 2006 M3 (selection of names for plant varieties) is amended in accordance with paragraphs (2) to (5).

(2) In paragraph (2), omit the words from “having” to the end.

(3) After paragraph (2), insert—

“(2A) In determining whether a name is suitable the Controller must consider—

(a) whether the use of the name in the United Kingdom is precluded by a prior right;

(b) whether the use of the name may commonly cause its users difficulties as regards recognition or reproduction;

(c) whether the name is identical to, or may be confused with, a name under which another variety of the same or a closely related species —

(i) is entered in any other official register of plants, or

(ii) has been marketed in the territory of a Member of the Union for the Protection of New Varieties of Plants,

and, if so, whether that other variety remains in existence and whether its denomination has acquired special significance;

(d) whether the name is liable to give offence or otherwise be contrary to public policy;

(e) whether the name is liable to mislead or cause confusion concerning the characteristics, the value or the identity of the variety or of the breeder;

(f) whether the variety is the same as a variety which has been registered in, or marketed in the territory of a Member of the Union for the Protection of New Varieties of Plants or a State which provides equivalent protection under a different name.

(2B) In deciding the issues specified in paragraph (2A), the Controller must apply the rules set out in regulations 3A to 3G.”.

(4) In paragraph (4), omit “, on the basis of the EU provisions referred to in paragraph (2),”.

(5) In paragraph (8)—

(a) omit “having regard to the EU provisions referred to in paragraph (2)”;

(b) in sub-paragraph (b), omit “, having regard to the EU provisions referred to in paragraph (2),”.

(6) After regulation 3 of those Regulations, insert—

“Selection of plant variety names: prior rights

3A.— (1) This regulation applies for the purposes of regulation 3(2A)(a).

(2) The Controller must not accept the proposed name as suitable if the Controller has been notified of a registered trademark which is identical or similar to the proposed name and which relates to goods which are identical or similar to the plant variety for which the name is proposed, unless the Controller is satisfied that consent of the [F3 proprietor of the registered trademark] has been obtained.

(3) The proposed name must not be accepted as suitable by the Controller if—

(a) the proposed name contains a protected geographical indication or designation of origin, and

(b) the use of the proposed name would infringe the protection conferred by registration on goods which are identical to or comparable with the plant variety concerned.

(4) In this Regulation—

“registered trademark” means those trademarks registered in the United Kingdom;

“protected geographical indication or designation of origin” means designation of origin or geographical indication registered in the United Kingdom.

Selection of plant variety names: appellation or codes

3B.— (1) This regulation applies for the purposes of regulation 3(2A)(b).

(2) If a proposed name is not in the form of a code, the Controller must not accept it as suitable, on the grounds that it may commonly cause its users difficulties as regards recognition or reproduction, if it—

(a) consists of a single letter;

(b) consists of, or contains as a separate element, a series of letters not forming a word readily pronounceable by a person who speaks only English;

(c) contains a number;

(d) consists of three or more words or elements, unless the words taken together make it easily recognisable or reproducible;

(e) consists of or contains an excessively long word or element;

(f) contains a punctuation mark or other symbol, an upper and lower case mixture, subscript or superscript, or a design.

(3) If a proposed name is in the form of a code, the Controller must not accept it as suitable, on the ground that it may commonly cause its users difficulties as regards recognition or reproduction, if it—

(a) consists of a number or numbers only;

(b) consists of a single letter;

(c) contains more than ten letters, or letters and numbers;

(d) contains more than four alternating groups of a letter or letters and a number or numbers;

(e) contains a punctuation mark or other symbol, subscript, superscript or a design.

Exceptions to regulation 3B

3C.— (1) Regulation 3B(2)(b) does not require the Controller to refuse to accept a proposed name as suitable if the series of letters concerned is an established abbreviation, provided that any such established abbreviation is limited to a maximum of two sets of three characters each, located at each end of the proposed name.

(2) Regulation 3B(2)(c) does not require the Controller to refuse to accept a proposed name as suitable if—

(a) the number concerned is an integral part of the name, or

(b) the number indicates that the variety is or will be one of a numbered series of varieties related through their breeding history.

(3) Regulation 3B(2)(f) does not require the Controller to refuse to accept a proposed name as suitable on the grounds of a mixture of upper and lower case letters, if the first letter is upper case and the remainder are lower case.

(4) Regulation 3B(3)(a) does not require the Controller to refuse to accept a proposed name as suitable if the number or numbers indicate inbred lines or similar specific types of variety.

Declaration on application as to nature of proposed name

3D.— (1) An applicant for a grant of plant breeders' rights must declare whether the proposed name for the plant variety is a code.

(2) If the applicant does not make such a declaration, the Controller is to presume that the proposed name is not a code.

Selection of plant variety names: identical or confusing names

3E.— (1) This regulation applies for the purposes of regulation 3(2A)(c).

(2) In determining whether a proposed name may be confused with another name of a plant variety of a description mentioned in regulation 3(2A)(c), the Controller must regard such confusion as likely to arise if the difference between the proposed name and the name of a variety of a closely related species—

(a) consists only of a difference of a single letter or digit, or the transposition of two letters;

(b) consists only of a difference in accents on letters in the names.

(3) If the Controller regards such confusion as likely to arise, he may not accept the proposed name as suitable.

Exceptions to regulation 3E

3F.— (1) Regulation 3E(2)(a) does not prevent a proposed name from being acceptable if the single letter is prominent in a way that makes the proposed name clearly distinct from that of any other plant variety which is already registered in the United Kingdom or in the territory of another Member of the Union for the Protection of New Varieties of Plants.

(2) Differences of two or more letters for the purposes of regulation 3E(2)(a) are not to be regarded as confusing unless the difference results from the transposition of the letters in question.

(3) A difference of a single digit in an appellation (where digits are permitted in that name) is not to be regarded as confusing for the purposes of regulation 3E(2)(a).

Selection of plant variety names: liability to mislead or cause confusion

3G.— (1) This Regulation applies for the purposes of regulation 3(2A)(e).

(2) The Controller must not accept a proposed name as suitable, on the ground that it is liable to mislead or cause confusion, if he considers that—

(a) it conveys the false impression that the variety has a particular characteristic or value;

(b) it conveys the false impression that the variety is related to, or derived from, another specific variety;

(c) it refers to a specific characteristic or value in a way which conveys the false impression that only that variety possesses it, when other varieties of the same species may possess the same characteristic or value;

(d) by reason of its similarity to a well-known trading name other than a registered trademark or variety denomination, it suggests that the variety is another variety, or conveys a false impression concerning the identity of the applicant, the person responsible for the maintenance of the variety or the breeder;

(e) it consists of or contains—

(i) comparatives or superlatives;

(ii) the botanical or common names of species within the group either of agricultural plants species or vegetable species to which the variety belongs;

(iii) the name of a natural or legal person, or a reference to such a name, so as to convey a false impression concerning the identity of the applicant, the person responsible for the maintenance of the variety or the breeder;

(f) it includes a geographical name that would be likely to deceive the public as to the characteristics or the value of the variety.”.

Textual Amendments

F3 Words in reg. 19(6) substituted (31.12.2020 immediately before IP completion day) by The Animal Health, Invasive Alien Species, Plant Breeders’ Rights and Seeds (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/1220), regs. 1(2)(b), 8(7); 2020 c. 1, Sch. 5 para. 1(1)

Commencement Information

I5 Reg. 19 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(1))

Marginal Citations

M3 S.I. 2006 /648, amended by S.I. 2018/942.

Amendment of the EEA agreement U.K.

20.  In Annex 1 to the EEA Agreement, in Chapter 3 (Phytosanitary matters), in Section 2 (Application texts), in paragraph 18, omit the words from “The provisions of the Regulation shall” to the end.

Commencement Information

I6 Reg. 20 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(1))