A plant variety is a population of plants belonging to the same lowest botanical taxonomy, morphologically homogeneous, and stable through propagation cycles. Vietnam. Our country is an agricultural country, every year many varieties of plants are born, especially new varieties of rice. With many years of experience in legal advice in the field of intellectual property, Hong Bang Law would like to advise on the procedure for registration of plant variety protection as follows:

Legal basis

• Intellectual property law;
• Decree No. 22/2018/ND-CP dated February 23, 2018;
• Circular 16/2013/TT-BNNPTNT.

Condition(s)

Protected plant variety means a plant variety that has been selected, created or discovered and developed, on the list of plant species protected by the State promulgated by the Ministry of Agriculture and Rural Development, with novelty and distinctiveness, uniformity, stability, and proper name.

The novelty of the plant variety

A plant variety is considered novel if the propagating material or the harvested product of such plant variety has not been sold or distributed by the person having the right to registration specified in Article 164 of this Law or his/her authorized person. by other means to exploit plant varieties in the territory of Vietnam one year before the filing date of the registration application or outside the territory of Vietnam six years before the date of the application for registration, for plant varieties of woody and vine species, four years for other cultivars.

The distinctiveness of plant varieties

– A plant variety is considered distinctive if it is clearly distinguishable from other plant varieties that are widely known at the time of application or priority date if the application enjoys priority.

– The widely known plant variety specified in Clause 1 of this Article is a plant variety falling into one of the following cases:

+ A plant variety for which the propagating material or its harvest has been widely used in the market in any country at the time of applying for protection;

+ The plant variety has been protected or registered in the List of Plant Species in any country;

+ The plant variety is the subject of an application for protection or is registered in the List of Plant Species in any country if such applications are not rejected;

+ Plant variety for which a detailed description of that variety has been published.

Homogeneity of cultivars

A plant variety is considered to be homogenous if there is an equal expression of the relevant traits, except for deviations within the allowable range for some specific traits during propagation.

Stability of plant varieties

A plant variety is considered to be stable if the relevant traits of the plant variety keep the same expression as originally described, and do not change after each propagation season or after each propagation cycle in the same period. 

Name of the cultivar

– The registrant must propose a suitable name for the plant variety with the same name as the name registered in any country when applying for protection.

– The name of a plant variety is considered appropriate if it is readily distinguishable from the names of other widely known cultivars of the same or similar species.

– The name of the plant variety is not considered appropriate in the following cases:

+ Include only numerals, except where the number relates to that characteristic or the formation of the variety;

+ Violation of social ethics;

+ It is easy to cause misunderstanding about the characteristics and characteristics of that variety;

+ Easily misleading about the author’s identity;

+ Identical or confusingly similar to trademarks, trade names, or geographical indications that have been protected before the date of publication of an application for registration of plant variety protection;

+ Identical or similar to the name of the product harvested from that plant variety;

+ Affecting the pre-existing rights of other organizations and individuals.

– Organizations and individuals that offer for sale or put on the market propagating materials of plant varieties must use the name of the plant variety as stated in the protection title, even after the end of the protection term.

– When the name of a plant variety is combined with a trademark, trade name, or indications similar to the name of a plant variety that has been registered for sale or put on the market, such name must still be recognizable.

The dossiers

• A declaration for registration of plant variety protection (the form is provided in Appendix 5 of Circular 16/2013/TT-BNNPTNT);
• The technical declaration of DUS testing according to the form in the DUS testing regulations of each plant species;
• Photographs of variety samples: At least 03 color photos showing 3 typical traits of the variety, size 9 cm x 15 cm;
• Documents proving the registration right, if the registrant is the person to whom the registration right is transferred;
• Documents proving the priority right, if the application has a claim for priority right;
• Power of attorney to carry out the procedures for registration of plant variety protection if the application is filed through a representative (the form is provided in Appendix 1 issued together with Circular 16/2013/TT-BNNPTNT);
• A photocopy of the fee and fee receipt (when applying and applying for priority rights, if any) or fax of documents proving that the money has been transferred to the account of the Department of Crop Production;
• Other documents to support the application.

The competent

Department of Crop Production under the Ministry of Agriculture and Rural Development

Time

• Formal examination of the application: 15 days from the date of receipt of the application
• Publish valid application in a specialized journal on plant varieties: 90 days from the date the application is accepted.
• The time limit for appraisal of technical testing results: 90 days from the date of receipt of technical testing results.
• Publication in a specialized journal on plant varieties: 30 days from the date of signing the decision to grant a protection certificate.
• Issuing a protection certificate and entering the national register of protected plant varieties: After 30 days from the date the decision on granting a protection certificate is published in a specialized journal (if the written complaint is not received, certificate of protection).

Our services

• Legal advice on procedures for registration of plant variety protection;
•   Drafting application for registration of plant variety protection;
•   Submit dossiers and monitor progress at state agencies;
•   Receive results on behalf of clients;
• Handing over the results to the client.

If you need more detailed advice and answers as well as how to access this service, please contact directly our Lawyer Nhat Nam via hotline: 0912.35.65.75, 0912.35.53.53 or call the toll free legal consultation hotline 1900.6575 or send a service request via email: lienheluathongbang@gmail.com

Wishing you and your family good health, peace, and success!

Best regards!