إسبانيا

40BLAW ON THE PROTECTION OF PLANT VARIETIESF *

(No. 12/1975 of March 12, 1975)

0BI. PURPOSE AND SCOPE OF THIS LAW

12BSection 1

The purpose of this Law is to recognize and to ensure to the breeder of a new plant variety

protected by a “Plant Variety Title” and to his successor in title, a right, the content and conditions

of exercise of which are defined in the following Sections.

This Law may be applied to all botanical genera and species.

1BII. DEFINITION OF THE PLANT VARIETIES COVERED BY

THE PROTECTION AND DEFINITION OF THE BREEDER

13BSection 2

For the purpose of this Law, “plant variety” means any commercial variety (internationally

known as a “cultivar”), clone, line, stock or hybrid that satisfies the conditions established in this

Law.

14BSection 3

“Breeder” means any natural person or legal entity who proves that he is responsible for any

improvement, selection or discovery by which a new plant variety has been obtained in compliance

with the requirements established by this Law.

2BIII. CONDITIONS REQUIRED FOR PROTECTION OF A PLANT

VARIETY

15BSection 4

(1) For a variety to be eligible for protection under this Law it has to:

(a) be differentiated from existing varieties by one or more important morphological or

physiological characteristics which fluctuate little and are susceptible of precise

description and recognition;

(b) be homogeneous in the totality of its characteristics, according to its system of

reproduction or multiplication;

(c) be stable in its essential characteristics, in other words, remain true to the definition

given by the breeder at the end of each cycle of multiplication.

(2) The verification of whether a variety meets the above conditions constitutes the

“preliminary examination” for which rules shall be made.

* Spanish title: Ley 12/1975 de 12 de marzo de Protección de las Obtenciones Vegetales

Source: Boletìn oficial del Estado No. 63, March 14, 1975

(3) A variety shall not be considered new for the purposes of this Law when, at the time of

the application for a “Plant Variety Title,” it has already been marketed or offered for sale in Spain,

with the authorization of the breeder or his successors in title, or more than four years previously in

any foreign country, or where it has been the subject of sufficient advertising of any kind to be

used.

Similarly, the variety shall not be considered new if it is described in an application for a

“Plant Variety Title,” in a title that has not yet been published or in an application filed abroad that

benefits from the priority provided for in HUSection 10(3) UH of this Law.

In no case shall the sole fact that it has been recorded as such in an Official Register be

regarded as destructive of novelty.

(4) For the purposes of this Law, the following shall not be regarded as marketing:

(a) presentation at contests, collections or exhibitions, insofar as no commercial

transactions take place at them;

(b) production and distribution on an experimental scale.

3BIV. RIGHTS OF THE BREEDER

16BSection 5

(1) Any breeding of a new plant variety may be the subject matter of a “Plant Variety Title”

which, on recording thereof in the Register of Protected Plant Varieties at the National Institute of

Seeds and Nursery Plants, gives the holder the exclusive right to produce, introduce in the

territorial area to which this Law applies, sell or offer for sale, or use by any means permissible by

law material for sexual reproduction or vegetative propagation. The breeder’s right shall extend to

plants or parts thereof normally marketed for purposes other than propagation, especially as regards

the commercial production of ornamental plants or cut flowers, insofar as those plants or parts

thereof are used as propagating material. The breeder’s right shall not be infringed by the use made

by a farmer, in his own farm, of seeds or any other plant material produced by him.

(2) Authorization by the breeder or his successors in title shall not be required either for the

utilization of the new variety as an initial source of variation for the purpose of creating other new

varieties or for the marketing of such varieties.

(3) Authorization shall be required when the repeated or systematic use of the plants or parts

thereof of the original variety is necessary for the commercial production of plants or propagating

material of the new variety.

17BSection 6

(1) The grant and the benefits of the “Plant Variety Title” for a new variety may not be made

subject to conditions other than those set forth in HUSections 4UH, HU10UH and HU11UH of this Law, insofar as the

administrative formalities provided for in this Law and in rules made thereunder are complied with.

(2) A “Plant Variety Title” shall be granted without prejudice to the rights of third parties and

subject to the limitations established by this Law. Failure to observe those limitations shall render

the Title null and void in accordance with the provisions of HUSection 11UH of this Law and, where

appropriate, the cancellation of its registration in the Register of Protected Varieties at the National

Institute of Seeds and Nursery Plants.

(3) The holder of a “Plant Variety Title” may, after notification to the Registry of Protected

Plant Varieties, grant a license for the use of the variety covered by the said Title to any person

who applies for one, subject to compliance with the conditions specified by the said holder and

with any provisions on the subject in this Law and rules made thereunder. To this end, such

contracts shall be registered at the National Institute of Seeds and Nursery Plants.

(4) Where the holder of a “Plant Variety Title” is an official body established in Spain, it

shall be obliged to grant a license for the use of the variety covered by the said Title to any person

who applies for one and presents legal, technical and professional guarantees. Such license may in

no case have exclusive character. Where the applicant for a license is a foreigner, the transaction

shall be governed by the principle of reciprocity.

18BSection 7

(1) The Courts of Justice shall be competent in all questions relating to the ownership of a

“Plant Variety Title.”

(2) The holder of a “Plant Variety Title” may institute civil or criminal proceedings before

the Courts of Justice against any person who infringes the rights granted by this Law.

(3) Legal proceedings concerning plant breeders’ rights may only be instituted by one of the

parties.

(4) Plant breeders’ rights are transferable by any means admitted in law, without prejudice to

the limitations established by this Law; such transfer shall only be effective in relation to third

parties when they have been recorded in the Register of Protected Plant Varieties.

(5) Unless expressly agreed otherwise, the licensee may be party to legal proceedings to the

same extent as the holder of a “Plant Variety Title” without any formality other than notification in

writing to the holder of having become a party to the legal proceedings, in the event that the latter

should think it advisable to be a party.

19BSection 8

(1) The “Plant Variety Title” shall be granted by Order of the Ministry of Agriculture, on a

proposal by the Central Board of the National Institute of Seeds and Nursery Plants, pursuant to

HUSection 16UH of this Law.

(2) The grant of a “Plant Variety Title” shall immediately give rise to an entry in the Register

of Protected Plant Varieties at the National Institute of Seeds and Nursery Plants, which is

mentioned in Law No. 11/1971, and to the inclusion of the variety in the list of protected varieties

which shall be periodically published by the above-mentioned Institute in the “UBoletinU” mentioned

in HUSection 17UH of this Law.

(3) The “Plant Variety Title” shall be provisional for two years, after which time it shall

automatically become definitive if, within that two-year period, no objection is submitted to the act

of making the said grant. Once definitive, either because the provisional period has expired, or by

decision made on the above-mentioned objection pursuant to Section 121 of the Law on

Administrative Procedure, the appropriate legal proceedings may be brought. The provisional

character of the Title, while in force, shall be clearly stated on any document, packaging or

advertisement relating to the product covered by the said Title.

(4) During the period in which the Title is provisional, the breeder shall enjoy all the rights

granted under this Law. The said period shall be included, in each case, in the period of protection.

20BSection 9

(1) The rights conferred on the breeder of a new plant variety shall be granted for a limited

period, which may not be less than 15 years for herbaceous plants or 18 years for trees; this period

shall run from the date of the grant of the “Plant Variety Title.”

(2) For each species or group of species the period of protection, which shall never exceed 20

years, shall be established by rules.

21BSection 10

(1) All foreign breeders shall enjoy the same rights as national breeders, provided that the

legislation of their countries of origin applies the principle of reciprocity or that other international

agreements to which Spain is party establish such reciprocity.

(2) The aforementioned foreign breeders shall, in their relations with the Spanish Public

Administration and with the private producers or growers of the propagating material, be

represented by a person lawfully resident in Spain, who shall be given sufficient authority to

guarantee such commitments as the breeder or his successors in title may contract. The grant and

the rights derived from it shall remain subject, in all cases, to the performance of the obligations of

the Title holder.

(3) When applying for a “Plant Variety Title,” the applicant may claim the priority of any

applications previously filed for the same plant variety in any State with which Spain has an

agreement in this respect, on condition that the filing of the application in Spain takes place within

a period of 12 months from the filing of the first application.

22BSection 11

(1) The “Plant Variety Title” shall be declared null and void:

(a) when the Title holder does not have a right to obtain it according to the provisions laid

down in HUSection 3UH of this Law;

(b) when the plant variety in respect of which the Title has been granted does not meet the

requirement of novelty laid down in HUSection 4UH of this Law.

(2) Action for nullity may be brought by any interested party during the entire period of

protection afforded by the “Plant Variety Title.”

(3) The right of the breeder or his successors in title shall be extinguished in the following

cases:

(a) at the request of the Title holder himself;

(b) when there has been a failure to maintain the conditions of homogeneity and stability

laid down in HUSection 4UH of this Law;

(c) when neither the Title holder nor his licensees have reproductive or propagating

material capable of producing the new variety, as defined when the “Plant Variety

Title” was granted;

(d) when neither the Title holder nor his licensees submit, within the required time limit,

the reproductive or propagating material, or the information or documents deemed

necessary for examining the variety, or do not allow inspection of the measures which

have been taken for the maintenance of the same variety, according to the requirements

which shall be established by rules;

(e) when the legally established fees have not been paid within the prescribed period or the

requests for payment have not been met;

(f) when the Title holder does not agree to grant a license to use the new variety, pursuant

to HUSection 12(1)UH of this Law;

(g) when an objection or administrative appeal, filed pursuant to HUSection 8(3)UH of this Law,

has been upheld by a final and definitive decision;

(h) when the period of time laid down by HUSection 8UH of this Law expires.

(4) Upon the extinction, for whatever reason, of the right of the breeder or his successors in

title, the plant variety protected by that right shall fall into the public domain.

23BSection 12

(1) The Ministry of Agriculture shall be entitled to order that a plant variety for which a

“Plant Variety Title” has been granted shall be subject to compulsory licensing, in compliance with

the conditions to be established by rules, either because of unjustified failure to use or because the

public interest so dictates.

(2) For the purposes of HUSubsection (1) UH of this Section, any person providing legal, technical

and professional guarantees may apply to the Ministry of Agriculture for the grant of a compulsory

license for use, which shall in no case be exclusive.

(3) In case the licence for use referred to in the preceding Subsections is granted, the right of

the breeder shall at all times be guaranteed.

4BV. DENOMINATION OF VARIETIES

24BSection 13

(1) A new plant variety shall be given a single denomination which permits its identification.

Such denomination shall be considered the generic designation of the variety.

(2) The denomination of the new variety shall not be exclusively composed of figures, or be

liable to mislead or cause confusion concerning its characteristics, its usefulness or the identity of

the breeder. It shall be different from every denomination which designates other existing varieties

of the same or closely-related botanical species and be adapted to the provisions of the standards of

nomenclature laid down by the rules and the international agreements on this subject to which

Spain is party.

(3) A plant variety may not be denominated in a way different from that used in the first

country in which it has been registered, except in the cases to be laid down in rules; in such cases,

subject to approval, a translation of the original denomination or a different one may be used.

25BSection 14

(1) The denomination of a new plant variety shall be registered at the same time as the

issuance of the “Plant Variety Title.”

(2) The breeder or his successor in title may not submit as the denomination of a new variety

either a denomination already protected in Spain or in countries with which agreements on plant

variety protection have been established, by a trademark relating to identical or similar products or

a denomination liable to cause confusion with such a trademark, unless he undertakes to renounce

his rights in the trademark as from the grant of the “Plant Variety Title.” If the breeder or his

successor in title nevertheless submits such a denomination, he may not, as from the time when the

“Plant Variety Title” is registered, continue to exercise his rights under the trademark in respect of

the products specified, unless international agreements require otherwise.

(3) If the denomination submitted by the breeder or his successor in title does not satisfy the

requirements laid down by this Law, the Ministry of Agriculture shall request that a new

denomination be proposed.

(4) Before a “Plant Variety Title” is entered in the Register of Protected Plant Varieties at the

National Institute of Seeds and Nursery Plants, the denomination submitted for the new plant

variety shall be notified to the Industrial Property Registry, in order that the latter may report on it.

(5) The denomination given to a protected plant variety may not be registered as a trademark.

(6) Notwithstanding the foregoing Paragraph, it shall be permitted, for marketing purposes, to

add a trademark to the denomination of the new plant variety, if the breeder owns the trademark or

is authorized to use it.

5BVI. BODY IN CHARGE OF PLANT VARIETY PROTECTION

26BSection 15

The functions entrusted to the Ministry of Agriculture under this Law shall be exercised by

the National Institute of Seeds and Nursery Plants, established by Law No. 11/1971 of March 30,

1971.

27BSection 16

The Commission of Plant Variety Protection, established within the Central Board of the

National Institute of Seeds and Nursery Plants, organized by Law No. 11/1971 of March 30, 1971,

shall be composed as follows:

President: the President of the Central Board of the National Institute of Seeds and Nursery

Plants;

Vice-President: the Director of the National Institute of Seeds and Nursery Plants;

Legal Adviser: the Head of the Legal Department of the Ministry of Agriculture;

Technical Advisers: persons with recognized competence in botany, genetics, reproduction of

seeds and nursery plants and legal problems relating to plant variety protection, appointed by the

President;

Members: those members of the Central Board appointed by its President, among whom there

shall be a representative of the National Institute of Agrarian Research and two agrarian

representatives of the Trade Union Organization;

Secretary: the Technical Administrator of Laboratories and Registers of Protected

Commercial Varieties.

The Commission of Plant Variety Protection shall:

(a) propose to the Minister for Agriculture, through the Central Board of the Institute, the

issuance, revocation, declaration of lapse and, if appropriate, annulment of “Plant

Variety Titles”;

(b) propose to the Minister for Agriculture, through the Central Board of the Institute, the

measures and rules intended for the protection of breeders’ rights;

(c) propose rules for the application of breeders’ rights to the different genera or species;

(d) report on matters concerning plant variety protection submitted by the President for

study;

(e) carry out any other tasks which may be entrusted to it by any law or rules.

28BSection 17

(1) The National Institute of Seeds and Nursery Plants shall periodically publish a UBoletin del

Registro de Variedades ProtegidasU, in which applications for registration, denominations submitted

and denominations approved shall be recorded, as well as the grant of “Plant Variety Titles” and

other non-confidential information, in order to ensure better public knowledge of the area

concerned.

(2) It shall also issue such reports as are requested of it by the Courts of Justice concerning

breeders’ rights.

6BVII. INFRINGEMENT AND PENALTIES

29BSection 18

(1) For the purposes of HUSection 7UH, any person who infringes breeders’ rights in any of the

following ways shall incur civil liability, and be obliged in all cases to furnish compensation for the

damage and loss caused thereby:

(a) producing for commercial purposes or marketing reproductive material of the protected

plant variety, in disregard of the provisions of HUSection 5(1)UH;

(b) marketing plants or parts thereof normally marketed for purposes other than

propagation, if they are then used as propagating material, in disregard of the

provisions of HUSection 5(1)UH;

(c) repeatedly using reproductive material of a protected plant variety for the production of

propagating material of a new plant variety;

(d) contracting for the transport of the propagating material of a protected plant variety to a

territory outside the scope of application of this Law, without special authorization

from the Title holder.

(2) All those making any other use of the protected plant variety or those who in any other

way infringe the breeders’ rights granted by this Law shall be obliged to furnish compensation for

the damage and loss caused thereby only when their conduct involves fault or negligence. The

existence of fault shall be presumed from the time when the person responsible for such acts has

been warned by the holder of the “Plant Variety Title” about the existence of the same and required

to cease infringing the said Title.

(3) The compensation for damage and loss in favor of the holder of the “Plant Variety Title”

shall include not only the amount of the loss and of the profit which would otherwise have been

obtained, but also damages for the loss of the goodwill attaching to the plant variety caused by

inadequate use made by the infringer.

(4) The relevant general legislation on limitation of actions shall apply to the civil action for

compensation of damage and loss.

(5) In addition to compensation for damage and loss, the injured Title holder shall be entitled

to:

(a) the cessation of the act infringing his right;

(b) the withdrawal from circulation of all the plant material obtained through illegal acts

that is in the possession of any of the persons responsible, and its destruction if this is

indispensable;

(c) reversion to himself, as his own property, of the plant material referred to in the last-

mentioned Paragraph, in which case allowance for its value shall be made in

calculating the compensation for damage and loss. If the value of the above-mentioned

plant material exceeds the compensation to be granted, the injured Title holder shall

compensate the infringer for the excess;

(d) the publication of the judgment, at the expense of the losing party, in the “UBoletinU”

referred to in HUSection 17UH of this Law.

30BSection 19

(1) Any willful infringement of the exclusive right given by the “Plant Variety Title” to its

holder shall be punished according to the provisions of Section 534 of the Criminal Code.

(2) Criminal proceedings may only be brought by the injured Title holder or his licensee, or

his successors in title.

(3) The relevant general legislation shall apply to criminal proceedings and to the civil action

resulting from the crime.

31BSection 20

(1) Acts carried out that are not in compliance with the provisions of this Law and the rules

made thereunder shall be considered administrative offenses and shall be punished according to the

following Sections, without prejudice to the competence of the Courts of Justice, as regards the

civil or criminal liabilities resulting from these acts.

(2) Administrative offenses shall be categorized according to the nature of the acts

concerned; they may be fraudulent, clandestine or against the rules.

(3) The following shall be considered fraudulent:

(a) acts of assignment of plant material which, while purporting to be protected by a “Plant

Variety Title,” do not correspond to the features recorded in the Register of Protected

Plant Varieties:

(b) acts of noncompliance, imputable to any of the interested parties, with the conditions

included in the license to use a protected plant variety and affecting the intrinsic

qualities of the material and the circumstances upon which the decision to issue the

“Plant Variety Title” was based.

(4) Those acts which evade or attempt to evade or make difficult the supervision of the

activities governed by this Law and the observance of the rules established under the Law for its

successful application and financial viability shall be considered clandestine.

(5) Any other offense shall be considered merely against the rules.

32BSection 21

The laws and rules on the suppression of fraud in respect of agricultural products or of

materials necessary for agriculture shall apply as subsidiary legislation.

33BSection 22

(1) Fraudulent offenses shall be punished with fines of between 20,000 and 100,000 pesetas;

the expenses incurred in the verification of the fraud shall be borne by the offender and, where

appropriate, the plant material giving rise to the fine shall be confiscated.

(2) Clandestine offenses shall be punished with fines of between 10,000 and 50,000 pesetas

and by the confiscation of the merchandise.

(3) Offenses which are merely against the rules shall be punished with fines of between 1,000

and 25,000 pesetas.

34BSection 23

The determination, within given limits, of the amounts of the fines established in the last-

mentioned Section, shall be fixed in each case according to the importance of the offense, the

injury caused, the degree of bad faith on the part of the infringer, his behavior and his previous

record and, in general, any circumstances which render him the more or the less responsible.

35BSection 24

In the case of a second offense, the fines shall be 50 percent higher than those applicable

under this Law.

(2) Should the person committing a second offense have committed a clandestine or

fraudulent offense, the fines may be raised to three times those applicable, and the suspension of

the activity in relation to which the offense arose may be ordered for a period of up to one year.

(3) A person who has, within the preceding five years, been punished for disregarding the

provisions of this Law shall be considered a second offender.

(4) The Ministry of Agriculture may decide, if appropriate, on the publication of sanctions

imposed in the Official Journal, for exemplary purposes.

7BVIII. FEES

36BSection 25

Fees for the Protection of Plant Varieties shall be payable. They shall be subject to the

legislation contained in the Law of December 26, 1958, on Fees and Parafiscal Levies, the

Consolidated Taxation Law of December 28, 1963, and the additional provisions under those Laws,

and shall be governed by the provisions of this Law.

37BSection 26

For the purposes of the fees established in the aforementioned Section, the plant species or

groups thereof which are subject to protection shall be divided into the following groups:

— First group: cereals, oil seeds, lucerne, cotton, sugar and fodder beet, vetch, potato, pea,

broad bean and French bean;

— Second group: fruit trees, rose, carnation and strawberry:

— Third group: lettuce, tomato, onion, melon, sainfoin, red clover and white clover;

— Fourth group: the other species not included in the above-mentioned groups.

38BSection 27

(A) The following fees shall be paid for the services listed below, according the types

which are also included: [not reproduced here; the tariff of fees is amended

occasionally].

(B) The natural persons or legal entities who receive either from the Public Administration

or from the Registry of Protected Plant Varieties any of the services listed in the

preceding Subsections, whatever the nature of their request, shall be obliged to pay the

fees.

(C) The fees shall be payable when the appropriate services are requested. When these

services are rendered without the need for a prior request, the fees shall be payable at

the time of their execution.

(D) The amount collected in fees shall be paid to the Public Treasury, according to

provisions to be established in rules, for its inclusion in the State General Budget.

(E) The Ministry of Finance shall be the body responsible for all matters appertaining to

the fees; it may decide that the computing, notification, and collection of such fees be

performed by the Ministry of Agriculture and, within that Ministry, by the National

Institute of Seeds and Nursery Plants.

8BIX. PROCEDURE AND APPEALS

39BSection 28

(1) The procedure to be followed for the processing of the dossiers governed by this Law

shall be that established in the Law on Administrative Procedure of July 17, 1958,

which shall also regulate the appeals which interested parties may bring against any act

or decision pronounced.

(2) It shall be a function of the National Institute of Seeds and Nursery Plants to collect all

available evidence and information on dossiers likely to involve a decision imposing a

fine and to formulate proposals as to how dossiers should be decided, doing so on its

own initiative or pursuant to a request from the interested parties or from the competent

authorities.

(3) The decision shall be taken by:

(a) the Service for Defense against Frauds and for Agricultural Analyses, when the amount

of the fine is not over 25,000 pesetas;

(b) the competent Director General, when the amount of the fine is over 25,000 and does

not exceed 50,000 pesetas;

(c) the Minister for Agriculture, when the amount of the fine is over 50,000 pesetas.

(4) The limitation period for infringement of this Law shall be five years from when they are

committed.

9BADDITIONAL PROVISIONS

(1) Article 48 of the Royal Decree-Law of July 26, 1929, on Industrial Property is hereby

completed as follows:

“A patent shall not be granted for the following:

7) plant varieties which can benefit from the protection system established by the Law on the

Protection of Plant Varieties.”

(2) The amounts of the fines established in absolute quantities in pesetas may be revised by

the Government, through the application of coefficients of correction, according to the average

price of the objects or products in question.

10BTRANSITIONAL PROVISIONS

(1) The breeder of a plant variety which is no longer new at the time when protection of a

corresponding species is established may, in the following instances and in accordance with this

Law, request the protection of his rights:

(a) if a patent has been granted for a plant variety in Spain or in any other country with

which an international agreement on the protection of breeders’ rights has been

established;

(b) if a “Plant Variety Title” has been issued in any country or countries with which Spain

has established an agreement on the protection of breeders’ rights;

(c) if the plant variety has been registered in a list of commercial varieties officially

published in Spain. In this case, the application for the protection of rights for this plant

variety shall be submitted within a period of twelve months from the time of entry into

force of the Rules mentioned in the first final provision for the general, species of

group of species to which this plant variety belongs.

(2) The “Plant Variety Title” for varieties shall be effective as from the date of filing of the

application. The period of time elapsed after the filing of an application for a patent, or after the

grant of a “Plant Variety Title” or after its registration in the List of Commercial Varieties, shall,

where the conditions set forth in HUParagraph (c)UH of the first Transitional Provision have been

complied with and where the other cases provided for in the said provision are applicable, be

deducted from the period of protection.

(3) Plant varieties that were being marketed before this Law came into force may continue to

be freely produced and offered for sale, as long as the breeder does not make use of the right

granted to him by the first Transitional Provision.

(4) Until the additional provisions for the application of these Rules to the various species or

groups of species enter into force, the system of protection applicable to them shall continue to be

that contained in the Law on Industrial Property.

11BFINAL PROVISIONS

1. This Law shall be applicable to the entire national territory. The Government shall, within

a period of one year from the publication of this Law, and on a proposal of the competent

Ministries, establish the Rules for implementing this Law; in these Rules the administrative

provisions in force on matters concerning this Law shall be included.

2. The provisions necessary for the entry into force of this Law, as regards each genera and

species or group of species, which shall be set forth in rules, shall be established by the Ministry of

Agriculture.