Commission Regulation (EC) No 930/2000

of 4 May 2000

establishing implementing rules as to the suitability of the denominations of varieties of agricultural plant species and vegetable species

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to Council Directive 70/457/EEC of 29 September 1970 on the common catalogue of varieties of agricultural plant species(1), as last amended by Directive 98/96/EC(2), and in particular Article 9(6) thereof,

Having regard to Council Directive 70/458/EEC of 29 September 1970 on the marketing of vegetable seed(3), as last amended by Directive 98/96/EC, and in particular Article 10(6) thereof,

Whereas:

(1) Directives 70/457/EEC and 70/458/EEC have laid down general rules in relation to the suitability of variety denominations, by means of a reference to Article 63 of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights(4), as amended by Regulation (EC) No 2506/95(5).

(2) For the purposes of the application of Directives 70/457/EEC and 70/458/EEC, it is appropriate to establish detailed rules for the application of the criteria set out by Article 63 of Regulation (EC) No 2100/94, in particular in respect of the impediments for the designation of a variety denomination as specified in paragraphs 3 and 4 thereof. In a first phase, such detailed rules should be limited to the following impediments:

- use precluded by the prior right of a third party,

- difficulties as regards recognition or reproduction,

- denominations which are identical or may be confused with a variety denomination of another variety,

- denominations which are identical or may be confused with other designations,

- misleading or causing confusion concerning the characteristics of the variety or other features.

(3) The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on Seeds and Propagating Material for Agriculture, Horticulture and Forestry,

HAS ADOPTED THIS REGULATION:

Article 1

The present Regulation establishes, for the purposes of the application of Article 9(6), first subparagraph, of Directive 70/457/EEC and of Article 10(6), first subparagraph, of Directive 70/458/EEC, detailed rules for the application of certain criteria set out by Article 63 of Regulation (EC) No 2100/94 for the eligibility of variety denominations.

Article 2

1. In the case of a trade mark as a prior right of a third party, the use of a variety denomination in the territory of the Community shall be considered to be precluded by the notification to the competent authority for the approval of the variety denomination of a trade mark, which has been registered in one or more Member States or at Community level prior to the approval of the variety denomination, and which is identical or similar to the variety denomination and registered in relation to goods which are identical or similar to the plant variety concerned.

2. In the case of a prior right of the applicant in respect of whole or part of the proposed denomination, Article 18(1) of Regulation (EC) No 2100/94 shall apply mutatis mutandis.

Article 3

1. A variety denomination shall be considered to cause its users difficulties as regards recognition or reproduction in the following cases:

(a) where it is in the form of a "fancy name":

(i) it consists of a single letter;

(ii) it consists of, or contains as a separate entity, a series of letters not forming a pronounceable word, except where this series in an established abbreviation;

(iii) it contains a number, except where this is an integral part of the name, or where this indicates that the variety is or will be one of a numbered series of biologically related varieties;

(iv) it consists of more than three entities; however, in the case of Article 63(4) of Regulation (EC) No 2100/94, more than three entities shall not be considered as an impediment;

(v) it consists of, or contains an excessively long word;

(vi) it contains a hyphen, a blank space other than between the entities of which it consists, another mark, an upper and lower case mixture within the entities, a subscript, a superscript, a symbol or a design;

(b) where it is in the form of a "code":

(i) it consists of a number or numbers only, except in the case of inbred lines or of similarly specific types of varieties;

(ii) it consists of a single letter;

(iii) it contains more than 10 letters, or letters and numbers;

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

(v) it contains a hyphen, a blank space other than for separation from a pronounceable word, another mark, a subscript, a superscript, a symbol or a design.

2. On submission of the proposal for a variety denomination, the applicant should declare where the proposed denomination is intended to be in the form of a "fancy name" or of a "code".

3. If the applicant makes no declaration on the form of the proposed denomination, the denomination shall be considered to be a "fancy name".

Article 4

In evaluating the identity of, or confusion with, a variety denomination of another variety, the following shall apply:

(a) "may be confused with" shall be considered to cover inter alia a variety denomination, containing a difference of only one letter or number, or of accents on letters, in relation to the variety denomination of a variety of a closely related species, which has been officially accepted for marketing in the Community, the European Economic Area or in a contracting party to UPOV, or is the subject of a plant variety right in such territories; however, a difference of only one letter in an established abbreviation as a separate entity of the variety denomination shall not be covered. Without prejudice to Article 6, this provision shall not apply to a variety denomination in the form of a code, if the reference variety denomination is equally in the form of a code;

(b) "closely related species" shall be considered to mean a species belonging to the same class as listed in the Annex, or, where not applicable, to the same botanical genus;

(c) "a variety no longer remains in existence" shall be considered to mean a variety no longer in commercial existence;

(d) "an official register of plant varieties" shall be considered as a reference to the common catalogue of varieties of agricultural plant species or of vegetable species, or to any register compiled and maintained by the Community Plant Variety Office, or by an official body of the Member States of the Community or the European Economic Area, or of a contracting party to UPOV;

(e) "a variety the denomination of which has acquired no special significance": the denomination of a variety which has at one time been entered in an official register of plant varieties and thereby acquired special significance shall be considered to have lost that special significance on the expiry of a 10-year period after deletion from that register.

Article 5

Designations which are commonly used for the marketing of goods or which have to be kept free under other legislation shall be considered to mean in particular:

(a) currency denominations, or terms associated with weights and measures;

(b) terms that have become part of everyday language in the whole, or part, of the Community and the approval of which as a variety denomination would impede its use by others when marketing reproductive or propagating material of other varieties;

(c) expressions that, by virtue of legislation, shall not be used for purposes other than those envisaged by that legislation.

Article 6

A variety denomination shall be considered to mislead or to cause confusion if:

(a) it conveys the false impression that the variety has particular characteristics 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, whereas in fact other varieties of the same species may possess the same characteristic or value;

(d) by dint of its similarity to a well-known trading name other than a registered trade mark 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 name, or part thereof, of a genus or species of the plant kingdom;

(iii) the common name of a genus or species of the plant kingdom within the group either of agricultural plant species or of vegetable plant species, to which the variety belongs;

(iv) the name of a natural or legal person, or a reference thereto, 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.

Article 7

Variety denominations which have been accepted in the form of a code shall be clearly indicated as such in the relevant official catalogue or catalogues of Member States for officially accepted plant varieties, or in the relevant common catalogue, by a footnote with the following explanation: "variety denomination approved in the form of a 'code'".

Article 8

1. This Regulation shall enter into force on the 20th day of its publication in the Official Journal of the European Communities.

2. It shall not apply to variety denominations which have been proposed by the applicant to the competent authority for their approval, prior to the day on which this Regulation enters into force.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 4 May 2000.

For the Commission

David Byrne

Member of the Commission

(1) OJ L 225, 12.10.1970, p. 1.

(2) OJ L 25, 1.2.1999, p. 27.

(3) OJ L 225, 12.10.1970, p. 7.

(4) OJ L 227, 1.9.1994, p. 1.

(5) OJ L 258, 28.10.1995, p. 3.

ANNEX

CLOSELY RELATED SPECIES

(Article 4(b))

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