Breeder's Rights on New Plant Varieties in Turkey

Abbreviations

Abbreviations	Definition
Statute	Law No. 5042 on the Protection of Breeder's Rights in New Plant Varieties
Regulation	Regulation on the Protection of Breeder's Rights in New Plant Varieties  (Official Gazette No. 25551)
IPL	Industrial Property Law No. 6769
Art.	article
TCC	Turkish Civil Code No. 4721
CCP	Code of Civil Procedure No. 6100
HD	Court of Cassation Civil Chamber
E.	Case No.
K.	Decision No.
T.	Date
Seed Law	Seed Law No. 5553
UPOV Convention	International Convention for the Protection of New Varieties of Plants
Ministry	Turkish Ministry of Agriculture and Forestry
General Directorate	General Directorate of Plant Production
Bulletin	Plant Varieties Bulletin
DUS	distinctness, uniformity and stability
CPVO	Community Plant Variety Office (EU)
Farmer Exemption Regulation	Regulation on the Implementation Principles of the Farmer Exemption (Official Gazette No. 25551)
TPC	Turkish Penal Code No. 5237
et seq.	et sequentes (and what follows)

Introduction

Agriculture is considered the greatest revolution in human history. It is not only about feeding ourselves, but also the foundation upon which civilization is built. This process, which began with the transition from nomadic to settled life, remains at the heart of the global economy and our survival today.

However, factors such as population growth, the climate crisis, and global competition putting pressure on local production are forcing the agricultural sector to find creative solutions. At the forefront of these solutions is the development of seeds that are resistant to adverse environmental conditions and highly productive in order to provide sufficient and healthy food for all humanity.

Nevertheless, due to the nature of the work, developing new seeds requires significant investment, and the ideas of those carrying out this activity must be legally protected.

The rights to these newly developed plant varieties are also protected under Turkish law through an approach similar to the patent system. This article will explain breeders' rights over new plant varieties in Turkey within a general framework.

Legal Basis for the Protection of Breeder's Rights in Turkey

In Turkish law, the protection of breeder's rights is regulated by Law No. 5042 on the Protection of Breeder's Rights in New Plant Varieties (the “Statute”) and the Regulation on the Protection of Breeder's Rights in New Plant Varieties (the “Regulation”).

Non-Patentable Invention: New Plant

Even if they constitute inventions, new plants and the methods of producing these plants cannot be patented under Turkish law pursuant to Article 82/3/b of the Industrial Property Law No. 6769 (“IPL”). As can be seen, even if they are inventions, the rights arising from new plant varieties are protected by a sui generis system independent from patent protection.

Differences Between Breeder's Rights and Patent:

	Breeder's Rights for New Plant Varieties	Patent
Protection Period	25 years 30 years for trees, vines and potatoes.	20 years
Start of Total Protection Period	As of January 1st after registration (end of calendar year)	Provided it is registered, from the date of application
Is Violation Regulated as a Crime as Well?	Yes (Certain violations are considered crimes)	No (Only private law sanctions exist)
Registration Authority	Turkish Ministry of Agriculture and Forestry	Turkish Patent and Trademark Office
Core Regulation	Law No. 5042 on the Protection of Breeder's Rights in New Plant Varieties	Industrial Property Law No. 6769
Innovation Requirement for Protection	Not being offered for sale within certain periods (1 year in Turkey, 4 years abroad, 6 years for trees and vines)	It has never been announced before worldwide.

Definition: Plant Variety

“Plant variety” refers to a group of plants that meets the following conditions (Statute Art. 2/e):

1. Identification based on the expression of certain characteristics produced by one or more genotypes

2. Distinction from other genotypes within the same species by at least one typical characteristic

3. Being included in the smallest taxonomic unit recognized as a unit suitable for propagation without change

According to this definition, species such as wheat (Triticum spp.), pea (Pisum sativum L.), and soybean (Glycine Max L.) are sufficient to represent a specific plant variety.

New Plant Variety and Protection Conditions

The “new plant variety” refers to plant varieties that are determined to be i) Novel, ii) Distinct, iii) Uniform, and iv) Stable (Statute Art. 3). These conditions are cumulative and must all be met.

Now let's examine the conditions that must be met in order for a new plant variety to be eligible for protection:

i. Novelty

For a plant variety to be considered novel, the multiplied copy or harvest of the plant in question must not have been sold or made available to the public for commercial purposes by the owner or with their consent within 1 year prior to the application date in Turkey, 4 years abroad, or 6 years for trees and vines (Statute Art. 5/1). For example, if a breeder who has developed a more productive wheat variety has commercialized this product in Spain for more than 4 year before applying for registration, they cannot benefit from legal protection because the element of “novelty” is lost.

The following circumstances do not affect the novelty requirement (Statute Art. 5/2):

1. Sales or disclosures that constitute an abuse of rights against the right holder.

2. Sales or disclosures covered by a contract for the transfer of the breeder's right.

3. Activities carried out under a reproduction contract on behalf of the right holder, provided that the right holder retains ownership of the reproduction material and that this material is not used in the production of another variety.

4. Activities related to field or laboratory trials or small-scale product processing trials conducted under a contract to determine the characteristics of the variety.

5. Activities arising from obligations such as legal procedures to be carried out for biological safety or the registration of varieties to be traded in the official catalog.

6. Activities related to the sale or public offering for consumption purposes of residual products or harvested material of a by-product nature arising during the production of the variety, or material arising from activities under subparagraphs (3), (4), and (5), without specifying the variety.

The burden of proving that the relevant variety has been commercialized shall lie with the party claiming that the product is not novel (TCC Art. 6; CCP Art. 190/1).

According to a decision rendered by the Turkish Court of Cassation, i) the inclusion of the plant in the Ministry's official catalog does not indicate that the variety has been commercialized (see Statute Art. 5/2/e) and the 1-year period does not commence, ii) In a lawsuit filed to overturn the decision to reject an application on the grounds that the variety is not new, the Ministry of Agriculture and Forestry (“Ministry”) must prove that the variety is not new due to commercialization.[1]

In light of these explanations, it is evident that plant varieties that have not been commercialized within the time limits specified in Article 5/1 of the Statute, or that have been commercialized but fall within the scope of Article 5/2 of the Statute, will be considered novel.

ii. Distinctness

On the date of application or priority date, a variety that is clearly distinct from varieties known to the public shall be considered distinct (Statute Art. 6/1). On the date of application for a variety, it must differ from varieties known to the public in at least one of the characteristics on which registration is based (Regulation 4/p).

If a breeder's right is granted for a variety in any country as a result of an application, or if the variety is included in the catalog, the variety is deemed to be known to the public as of the date of application (Statute Art.  6/2). The catalog referred to here is the Variety Catalog published annually by the Seed Registration and Certification Center Directorate under the Ministry (Seed Law, Art. 4/3).[2] The image on the right is taken from the section on Fruit and Vine Varieties in the 2025 Variety Catalog:

It can also be determined by looking at situations such as the variety being known to the public, the variety being put into use, or the variety being included in a catalog of varieties of a professional organization or in a reference collection. (Statute Art. 6/3)

iii. Uniformity

Except for possible variations depending on the propagation method used, a variety that shows uniformity in terms of the relevant characteristics is considered uniform (Statute Art. 7). Uniformity means that during propagation, the variety shows uniformity in other characteristics beyond the variation expected from the propagation method or is sufficiently homogeneous (Regulation Art. 4/r).

In plant cultivation, uniformity (or homogeneity) refers to the condition where all plants in a population are identical in terms of height, growth stage, fruit quality, and harvest time. For example, propagated specimens of a uniform tomato variety must germinate simultaneously, have nearly identical stem and leaf structures, flower during the same period, and be ready for harvest at the same time.

iv. Stability

A variety that remains unchanged in its relevant characteristics during successive propagations or at the end of specific propagation periods is considered stable (Statute Art. 8; Regulation Art. 4/s).

Accordingly, for example, if propagated specimens of the plant species of interest develop different characteristics (such as distinct differences in stem and leaves, different ripening and harvest periods), the species in question cannot be considered stable.

Right of Ownership

The holder of the right refers to the breeder and his legal successors (Statute Art.  2/d & 11; Regulation Art. 4/e).

In order for the breeder's right to be protected in Turkey, the right holder must be a Turkish citizen or a natural/legal person residing in Turkey, or must be one of the persons entitled to apply under the International Convention for the Protection of New Varieties of Plants (“UPOV Convention”), or, even if not a Turkish national, must have reciprocity with their own country (Statute Art. 4/1-2; Regulation Art. 6).

Breeder 

Breeder refers to a person who breeds or discovers and develops a new plant variety. (Statute Art. 2/c; Regulation Art. 4/d)

Joint Ownership

If there is more than one owner, the co-owners are entitled to rights under the provisions governing joint ownership, unless otherwise agreed between the parties (Statute Art. 11/2). Each co-owner may independently perform the following acts (Statute Art. 11/3):

• Freely dispose of their share (other co-owners have a right of first refusal; the transfer must be notified to the co-owners within 2 months, and the co-owners must exercise their right of first refusal within 1 month of notification – Statute Art.  11/5)

• Use the variety in question after giving written notice to the other right holders

• May take necessary measures to protect the subject matter of the right

• May, together with other shareholders, file civil and criminal lawsuits against third parties in case of infringement of rights arising from registration (the lawsuit must be notified to others within 1 month – Statute Art.  11/4)

If the transfer of the right to use the variety to third parties is not possible with the consent of all right holders, the court shall decide whether it can be transferred or not. (Statute Art.  11/6)

Employee-Employer Relationship

Unless otherwise agreed in a special contract between them or by the nature of the work, the employer is the owner of any varieties improved, discovered, or developed by employees while performing their work or by using information and tools at the workplace, even if they have no such duty. (Statute Art. 12 and 13)

However, the employee has the right to request a fee for the new plant variety (Statute Art. 12/3).

Registration Process

The registration process for plant breeders' rights for new plants is a technical process by its very nature, and the process must be carefully monitored.

Registration Application

The owner of the variety must apply to the General Directorate of Plant Production (“General Directorate”) affiliated with the Ministry in order to benefit from the protection right (Statute Art.  32; Regulation Art. 8).

Those who do not have a residence in Turkey must appoint a representative residing in Turkey to apply for and register a breeder's right for their varieties. (Regulation Art. 9/b/1)

It is mandatory to name a new plant variety (Regulation Law Art. 9; Regulation Art. 20).

The applicant shall benefit from priority if the application has been filed within 12 months in one of the contracting states of UPOV. (Statute Art. 34/1)

Ministry Review

The General Directorate affiliated with the Ministry examines the application from two perspectives: formally and substantively (Statute Art.  35; Regulation Art. 10). If there are formal deficiencies, a period is granted; if the deficiencies are not remedied within the period given, the application is deemed not to have been made (Statute Art.  35/2; Regulation Art. 11/2). If there are deficiencies in the substantive review, the application is rejected (Statute Art.  35/5; Regulation Art. 12/2).

Publication

The Directorate General publishes applications for which it has not identified any deficiencies in the Plant Variety Bulletin (“Bulletin”). (Statute Art.  36; Regulation Art.   13)

Third Party Opposition to the Application

It is possible to object to the application within 3 months of the publication date in the Bulletin by submitting a petition accompanied by evidence and documents related to the grounds for objection (Statute Art. 37; Regulation Art. 14).

Technical Review

Applications that pass these stages are subject to technical review (Statute Art. BÇK 39/1; Regulation Art. 16/a). 

Certificate of Registration

If, as a result of the examination, the Ministry determines that the persons to benefit from protection are eligible under Statute Art. 4 and that the applicant has completed the necessary procedures specified in the Law, it shall register the breeder's right in the registry and issue a Breeder's Right Certificate, and the status shall be published in the Bulletin within 30 days of registration. (Statute Art. 43 and 44)

Third Party Opposition to Registration (Statute Art.  45)

Third parties may oppose the registration of the breeder's right within 30 days of its registration. If, during the examination conducted by the Ministry, it is determined that a procedure related to the granting of the breeder's right has not been carried out or that a significant deficiency has been made, the Ministry shall decide on the invalidity of the registration procedure, the reversal of the procedure back to the stage where the deficiency occurred, and the re-execution of the procedures.

Period of Protection

The protection period is 25 years from the date of registration of the breeder's right. This period is 30 years for trees, vines, and potatoes. The expiration of the protection period is calculated as of the end of the calendar year. (Statute Art. 10)

For example, the 25-year term of a breeder's right registered on February 13, 2026, begins on December 31, 2026 (end of the calendar year) and ends on December 31, 2051, with protection.

However, during the period between the application and registration, those who perform acts covered by the protection must pay an appropriate fee to the right holder. (Statute Art. 15)

Unless an application is made, it is not possible to benefit from the protection provided by the Statute regarding the breeder's right.

Scope of Protection

The breeder's right grants the holder the following rights over the protected variety (Statute Art. 14/1):

a.      To cultivate or propagate.

b.     To prepare for propagation.

c.      To offer for sale.

d.     To sell or otherwise place on the market.

e.      To export or import.

f.       To stock.

The relevant rights also apply to the harvest obtained from propagated plants and the harvests obtained from this harvest, but the right holder must exercise their right here within a reasonable time (Statute Art. 14/2-3).

The relevant rights also apply to the following plant varieties (Statute Art. 14/5):

• Varieties derived from the protected plant, provided that the plant variety itself is not derived

• Varieties that are not different from the subject matter of the right

• Plant varieties whose production requires the use of the subject matter of the right each time

The derived plant referred to in Statute Art. 14/5/a applies in the following cases (Statute Art. 14/6):

• The variety must be derived from an initial variety in terms of dominant characteristics or from another variety derived from the initial variety in terms of dominant characteristics. In both cases, the derived variety must essentially exhibit the essential characteristics produced by the genotype or genotypes constituting the initial variety.

• The derived variety must be clearly distinguishable from the initial variety and must exhibit the essential characteristics produced by the genotype or genotypes constituting the initial variety, apart from the differences resulting from the method of derivation.

Derivation may essentially be achieved by methods such as natural or artificial mutant selection, somaclonal variant selection, selection of different individuals from within the initial variety, backcrossing, or obtaining plants transformed by genetic engineering. (Statute Art. 14/7)

The Limits of Protection

General Limitations

The following cases are outside the scope of the rights holder's authority (Statute Art. 16):

a.      Activities limited to personal purposes and not for commercial purposes.

b.     Activities carried out for testing purposes.

c.      Activities carried out for the purpose of obtaining other varieties, except as provided in Statute Art. 14/5.

Farmer's Exception (Statute Art. 17)

A farmer's exception exists for small farmers for certain plant species. The farmer's exception allows seeds obtained from the harvest of a protected plant to be used without paying additional fees. However, farmers who are not covered by the farmer exemption must pay a certain amount to the holder of the rights if they perform the acts specified in Statute Art. 17/1.

Compulsory License

The right of improvement is also limited by the compulsory license regulations set out in Statute Art. 18-30 and the provisions of the Regulation 25-32. This may be the case if it is in the public interest from the end of the third year of registration (Statute Art. 18/1; Regulation Art. 25/1). If, from the perspective of national defense or public health, the use, increased use, or dissemination of the protected variety is of great importance, it is considered to be in the public interest (Statute Art. 18/2; Regulation Art. 25/2). Public interest is also deemed to exist in cases where the non-use or insufficient use of the protected variety in terms of quality and quantity would cause serious damage to economic and technological development (Statute Art. 18/3; Regulation 25/3). The President of Turkey decides on compulsory licensing (Statute Art. 18/4).

Exhaustion of Rights

The breeder's rights are exhausted if material belonging to a protected variety or a variety falling under the provisions of Article 14/5 of the Statute, or material obtained therefrom, has been sold or marketed within the country by the breeder or with his consent. The breeder's rights cannot be asserted against subsequent dispositions involving such material or products. (Statute Art. 31/1)

However, if the subsequent transaction consists of activities enabling the reproduction of the variety subject to the right, or if it involves the export of material enabling the reproduction of the variety to a country that does not protect the genus and species to which the variety belongs, the breeder's right may be asserted in both cases. However, if the exported material is used for final consumption, the breeder's right is deemed to have been exhausted. (Statute Art. 31/2)

Example: A farmer who purchases improved seeds can produce a product (tomatoes) from these seeds and sell it in the market. The breeder cannot intervene in this process by saying, “You cannot sell these tomatoes,” because the breeder's right of control over that product ended with the initial sale of the seeds. However, if the farmer produces new seeds from the tomatoes they have grown and attempts to sell these seeds for commercial purposes, the breeder can prevent this. This is because intellectual property rights cover the sale of the material itself (the fruit), but prohibit the unauthorized reproduction and trade of the genetic material (the seed).

Post-Registration Obligations and Revocation of the Right

The holder of the right is responsible for maintaining the genetic structure of the protected variety or, where necessary, the genetic elements of the variety throughout the period of validity of the right (Statute Art. 47/1; Regulation Art. 24). The Ministry supervises whether this responsibility is fulfilled (Statute Art. 47).

If it is determined that the holder has failed to fulfill the obligations required under Statute Art. 47/1 or that the variety has lost its uniformity and stability characteristics, the breeder's right shall be revoked ex officio by the Ministry (Statute Art. Art. 48/1).

The breeder's right shall also be revoked ex officio by the Ministry in the following cases (Statute Art. Art. 48/2):

• If the information, documents, and materials requested pursuant to Statute Art. 47/2 are not provided by the right holder within the period specified by the Ministry.

• If the variety name is revoked by the court and the holder fails to submit a new name for the variety within the period specified by the Ministry.

The revocation of the breeder's right shall take effect from the date of its entry in the Register (Statute Art. 48/3).

Termination of the Right and Consequences

The right of the breeder ceases in the following cases: i) Expiration of the protection period, ii) Renunciation, iii) Non-payment of annual fees, iv) Nullity, and v) Cancellation (Statute Art. 55/1 & 54/1 & 48; Regulation Art. 37 & 38). The expired right becomes public property and is available for use by anyone (Statute Art. 55/2).

Legal Transactions

Transfer of Rights (Statute Art. 49; Regulation Art. 35)

The breeder's right is transferable and inheritable. Dispositions of the right upon death may be made. The transferee or the person who becomes the right holder through inheritance may request registration of the right in their name upon payment of the fee. To do so, an application must be submitted to the Directorate General with the originals or notarized copies of the following documents:

• Application letter

• Certificate of inheritance

• Breeder's right registration certificate

• Notarized transfer agreement bearing the signatures and declarations of the transferor and transferee, mentioning the name of the protected variety

• If the transferee is a legal entity, a signature circular

• If the transfer or succession request is made by a representative, a notarized power of attorney

Breeder's rights may be subject to pledge and seizure. This situation is recorded in the registry at the request of one of the parties and published in the Bulletin.

License (Statute Art. 50; Regulation Art. 36)

The rights arising from the application or registration may be subject to a license agreement valid within the country's borders.

The license agreement shall be made in writing. The license agreement shall be registered in the relevant registry by the Ministry upon the written request of one of the parties and published in the Bulletin. For the license agreement to be valid, the licensee or licensor must apply to the Ministry with the following documents (Regulation Art. 36/3):

• A notarized license agreement stating the signatures and declarations of the licensee and licensor, the application date and number of the variety subject to the license, the registration date and number, the license fee, the term, and the legal basis,

• Breeder's right registration certificate,

• Document proving payment of the fee,

• Signature circular if the licensee is a legal entity,

• Power of attorney if the request is made by a representative.

The license may be granted as an exclusive (monopolistic) license or a non-exclusive (simple) license. In an exclusive license, the licensee is granted a full monopoly right, and in this context, the licensor cannot grant a license to anyone else or use the right themselves. Unless otherwise agreed in the license agreement, the license is non-exclusive. In this case, the licensor may use the protected variety itself and may also grant other licenses to third parties for the same variety.

Unless otherwise agreed, licensees under a contractual license may not transfer the rights arising from the license to third parties or grant sublicenses.

Unless otherwise agreed in the contract, the person who acquires the contractual license right may, during the term of protection of the variety, exercise all rights relating to the use of the variety within the entire national territory.

In the event of a breach of the terms of the contract by the licensee, the rights arising from the application or registration may be asserted by the right holder against the licensee through legal action.

Unless otherwise agreed in the license agreement, exclusive licensees may file lawsuits on their own behalf that the right holder may file under this Law in the event of infringement of their rights by third parties. The Court of Cassation has stated that exclusive licensees may file lawsuits independently of the right holder against acts of infringement as follows:

The Court finds that the owner of the breeder's right is ... Agricultural Research Institute Directorate, that a license right was granted to ... over this right, that this license right is an exclusive license, that the defendant ... infringed upon the seed production license right, that it produced and sold the protected variety, that the sales amount was 2,250,000 kg, and that ... has the right to claim 3% of this sales amount. Therefore, the case was partially accepted, and it was decided that 59,577.30 TL in material damages, along with commercial default interest accruing from the date of the lawsuit, would be collected from the defendant... For the reasons explained above, the defendant's attorney's appeal objections were rejected, and the ruling, which is in accordance with the procedure and the law, was APPROVED (Court of Cassation, 11th Civil Chamber, E. 2015/15709 K. 2016/9711 T. 20.12.2016)

Non-exclusive licensees do not have the right to file a lawsuit; however, non-exclusive licensees may request the right holder to file a lawsuit by means of a notification through a notary public in cases of infringement of rights. If the right holder does not accept this request or does not file a lawsuit within 3 months from the date of receipt of the notification, the licensee may file a lawsuit on their own behalf, attaching a copy of the notification, and notify the right holder that they have filed a lawsuit. If there is a serious risk of harm, the licensee may request the court to issue a provisional remedy without waiting for the three-month period to expire (Statute Art. 50/9).

Liability Arising from Legal Proceedings (Statute Art. 51 )

A person who transfers or licenses their rights arising from an application or registration, whether for a fee or free of charge, is liable to compensate the transferee or licensee for damages in the event that it is determined that they lacked authority, or in the event that the application is rejected or revoked, or a decision of invalidity is issued. The period for claiming compensation begins from the date of the rejection, cancellation, or invalidity decision, or from the date on which the lack of authority is discovered. The transferor or licensor acting in bad faith is always liable for their actions. If the transferor or licensor has not disclosed to the other party the reports and decisions regarding the protectability of the variety subject to the right of improvement application or the right granted, or if they have not included the relevant documents in the contract, the existence of bad faith is presumed.

Action for Revocation Against Ministry Decisions

The judicial review of various administrative actions taken by the Ministry conducting the registration process is carried out through actions for revocation.[3]

Although it has been stipulated that lawsuits filed against decisions made by the Ministry will be heard at the Ankara Intellectual and Industrial Rights Court, there is no general provision regarding the time limit for filing such lawsuits (Statute Art. 57/6; 68/1). However, time limits for filing lawsuits have been specified for various situations:

• A lawsuit may be filed within 30 days of notification against a decision rendered as a result of a third party's objection to publication based on the variety not being new, ownership rights, and irregularities in the name. (Statute Art. 38/6)

• Pursuant to Statute Art. 41, a lawsuit may be filed within 30 days of notification of the decision regarding the rejection or continuation of the application concerning the name of the plant variety. (Statute Art. 41/4)

Invalidation Action

The court shall decide that the breeder's right is invalid in any of the following cases (Statute Art. 52):

• If, as of the date of application or priority, the variety is found not to be new or distinct.

• It is understood that the conditions of uniformity and stability have not been met.

• It is understood that the breeder's right registration was made in the name of a person who is not the actual right holder, other than those specified as right holders in Statute Art. 11 (partner breeder), Statute Art. 12 (contract-based employer), and Statute Art. 13 (employer).

A claim of invalidity may be brought by anyone with a legal interest, but pursuant to Statute Art. 52/c, a claim against an application made by an unauthorized person may only be brought by the actual right holder (Statute Art. 53).

A final decision of nullity is recorded in the registry and has effect against all persons (erga omnes). (Statute Art. 54/2)

If the right of the reformer is declared null and void, the effects of the decision are retroactive (ex tunc) and protection is deemed not to have arisen within the scope of the nullity (Statute Art. 54/1). Without prejudice to the right to claim compensation for damages arising from the bad faith of the right holder, the retroactive effect of invalidity does not affect the following situations (Statute Art. 54/3):

• Legally final and enforceable decisions rendered prior to the invalidation of the right due to infringement of that right.

• License agreements made and implemented before the decision on the invalidity of the right.

However, taking into account legitimate reasons and the principle of fairness, the court shall decide whether the fee paid under the license agreement shall be refunded in part or in full (Statute Art. 54/4).

Infringement of Breeder's Right

Infringment in the Sense of Private Law

The following acts shall be deemed an infringement of the breeder's rights (Statute Art. 56):

• Using the rights listed in Article 14 of the Statute without the consent of the right holder.

• Preparing, reproducing, offering for sale, selling, or otherwise placing on the market, exporting, importing, or storing for these purposes, reproduction material belonging to the protected variety, knowing or having reason to know that it was produced in violation of the rights holder's rights.

• Exceeding the rights granted by a contractual license or compulsory license, extending them without permission, or transferring these rights to third parties.

• Violating Statute Art. 9/4-5.

• Misappropriating rights.

• Participating in, assisting, or encouraging the acts listed in the above paragraphs, or facilitating the commission of such acts in any form or under any conditions.

• Refusing to disclose the source or method of obtaining material in one's possession that has been unlawfully produced or placed on the market.

Preservation of Evidence (before the trial)

In cases of infringement of plant breeders' rights, it is critically important to have evidence preserved prior to trial (CCP Art. 400 et seq.) due to the nature of the evidence (seed, crop, plant). Given the risk that the infringed products may be easily transported, used, consumed, or that traces in the field may be destroyed, it is possible to record evidence without notifying the infringer by conducting an inspection and/or expert examination through the Civil Courts of Peace (Sulh Hukuk Mahkemesi) before the lawsuit is filed. This eliminates the possibility of evidence being destroyed. This preventive mechanism directly increases the probative value and chances of success of the lawsuit to be filed in the future.

Interim Measures

Persons who have filed or intend to file a lawsuit may request the court to issue a provisional remedy decision, provided that they prove that the variety subject to the lawsuit is being used in Turkey in a manner that infringes upon their rights, or that serious and effective efforts are being made to use it (Statute Art. 63/1; CCP Art. 389 et seq.). The provisional measure must be of such a nature as to fully ensure the effectiveness of the judgment to be rendered and must include the following measures:

• Cessation of acts infringing the breeder's rights.

• Seizure of materials related to the subject matter of the right that have been produced or imported in violation of the breeder's right, wherever they are located within the borders of Turkey, including customs and free ports or free zones, and their storage in a manner that prevents damage.

Infringement Cases (Private Law)

If the right of the breeder is infringed, the right holder may file the following claims before the court (Statute Art. 57/1; 62):

• Declaratory Action: Declaration by the court of the existence of the act of infringement. (Statute Art. 62)

• Cessation and Prohibition: Cessation and prevention of acts infringing the right.

• Removal of Infringement and Compensation: Removal of the infringement and compensation for material and moral damages.

• Seizure: Seizure of materials produced as a result of the infringement and the tools directly used in their production.

• Transfer of Ownership: Granting ownership rights over seized materials and tools (in this case, the value of the materials is deducted from the amount of compensation).

• Destruction and Alteration: Destruction or alteration of materials to prevent the continuation of the infringement.

• Public Notice: Publication of the court decision at the expense of the opposing party.

In calculating material damages, both actual damages and lost profits are taken into account (Statute Art. 59/1). The right holder may choose one of the following three methods to determine lost profits:

1)     The potential income that the right holder would have earned if the right had not been infringed.

2)     The actual profit earned by the infringer through the use of the protected variety.

3)     The hypothetical license fee that the infringer would have had to pay if they had used the protected variety in a lawful manner under a license agreement.

Competent Court

The competent court in legal proceedings initiated by the rights holder is the court where the plaintiff resides or where the crime was committed or where the effects of the infringement are felt (Statute Art. 57/2). If the plaintiff does not reside in Turkey, the competent court shall be the courts in Ankara (Statute Art. 57/3). In cases filed by third parties against the applicant or the right holder, the competent court shall be the court where the defendant resides. If the applicant or right holder does not reside in Turkey, the competent court is the court in Ankara (Statute Art. 57/4).

The court with jurisdiction is the Civil Court of Intellectual and Industrial Property Rights (Fikri ve Sınai Haklar Hukuk Mahkemesi), which are specialized courts in accordance with Statute Art. 68.

Infringement in the Sense of Criminal Law

Certain infringements of plant breeders' rights (unlike patent legislation) are also classified as criminal offenses. The circumstances considered violations and the penalties applicable in such circumstances are set out below (Statute Art. 66):

a.      Those who commit the acts specified in Statute Article 56(a), (b), and (e) shall be punished with imprisonment for 1-2 years or a judicial fine of up to 1000 days.

b.     Those who violate Statute Article 56(c), (d), and (g) shall be punished with a fine of not less than 250 days.

c.     Those who falsely represent themselves as the applicant or the right holder shall be punished with a fine of not less than 250 days. 

d.     If the above acts are committed within the scope of the activities of a legal entity, security measures specific to legal entities shall be imposed on them.

Complaint Requirement: The prosecution of the offenses listed in this article (except for paragraph c) is subject to complaint. In the absence of specific regulations, the complaint period is six months from the date the right holder learns of the act and the perpetrator (TPC Art. 73). 

Compensation Claim

Various provisions of the Statute state that a specific price must be paid to the right holder. For example, it is stipulated that a specific price must be paid to the right holder if farmers, other than those covered by the farmer exception, use the plant and if the applicant's plant is used prior to registration (Statute Art. 17/3/c; 15). In this regard, if the relevant compensation is not paid, the right holder has the right to file a lawsuit against the relevant persons within one year from the date of learning of the acts (Statute Art. 60).

Negative Declaration Action

Any interested party may file an action against the right holder, requesting a ruling that their activities do not constitute an infringement of the right holder's rights (Statute Art. 61/1). Before filing a negative declaration action, the person seeking a determination that their actions do not constitute an infringement shall notify the right holder through a notary public, requesting their opinion. If no response is received within one month or if a negative response is received, a negative determination lawsuit may be filed (Statute Art. 61/2). It is not possible to file a negative determination lawsuit after the opposing party has filed an infringement lawsuit (Statute Art. 61/3). In this lawsuit, the burden of proof lies with the defendant, who stands to gain from the lawsuit; the defendant must prove that the plaintiff's activities do not constitute infringement. If the defendant fails to prove this, the plaintiff's lawsuit will be accepted on the grounds that no infringement has occurred.

Conclusion

This article discusses breeders' rights over new plant varieties. The development of new plant varieties, which play a critical role in combating population growth and environmental degradation, is encouraged by the exclusive rights granted to breeders. The legal protection of these rights depends on the completion of the registration process. In the post-registration phase, invalidity and infringement lawsuits are of central importance. In these processes, the meticulous work of administrative and judicial authorities, as well as expert witnesses, and the early identification of evidence are vital for resolving disputes.

[1] Turkish Court of Cassation, 11. HD., E. 2018/915, K. 2019/2716, T. 8.4.2019

[2] Catalogues after 2015 can be accessed at https://www.tarimorman.gov.tr/BUGEM/TTSM/Menu/141/Tescil-Raporlari-Ve-Cesit-Katalogu (Last accessed: 04.02.2026).

[3] Court of Cassation, 11. HD., E. 2018/915 K. 2019/2716 T. 8.4.2019