Official Journal of the Republic of Montenegro No. 48/07, 48/08 and 40/11
LAW ON PROTECTION OF PLANT VARIETIES
I. GENERAL PROVISIONS
Subject-matter of the Law
Article 1
This Law shall govern the terms and the procedure for the protection of plant varieties
(hereinafter referred to as: varieties) as well as rights and obligations of holders of the
breeder’s rights.
This Law shall apply to all plant genera and species.
Article 2
For the purposes of this Law, the terms used shall have the following meaning:
1) Variety shall mean a plant grouping within a single botanical taxon of the lowest
known rank, which grouping, irrespective of whether the conditions for the grant of
a breeder’s right are fully met, can be defined by the expression of the
characteristics resulting from a given genotype or combination of genotypes and is
distinguished from any other plant grouping by the expression of at least one of the
said characteristics and considered a unit with regard to its suitability for being
propagated unchanged;
2) Protected variety shall mean a variety protected in accordance with the provisions
of this Law;
3) Breeder shall mean:
- the person who bred or discovered and developed a new variety,
- the person who is the employer of the aforementioned person referred to in indent
1 of this item, or the person who has commissioned the latter’s work; or
- the successor in title of the person referred to in first or second indent of this item,
as the case may be;
4) Breeder’s right shall mean the right of the breeder acknowledged by registration of
the protected variety into the Register of Protected Varieties, in accordance with
this Law;
5) Breeder’s right holder shall mean a person who has been granted a breeder’s right
in accordance with provisions of this Law, or his successor in title or heir;
6) Register of Applications for variety protection shall mean the register into which
duly filed applications for protection of a plant variety are recorded (hereinafter
referred to as: Register of Applications);
7) Register of Protected Varieties shall mean a register into which protected varieties
are recorded;
8) UPOV means the International Union for the Protection of New Varieties of Plants.
Rights of Foreign Persons
Article 3
Foreign legal and natural persons shall enjoy the rights identical to those of domestic
persons with respect to variety protection in Montenegro.
Article 4
In the proceedings before the competent authority, any foreign legal and natural person
shall be represented by a local representative.
II. VARIETY PROTECTION
1) CONDITIONS AND DURATION
Conditions
Article 5
A variety shall be protected in accordance with this Law provided that it is new, distinct,
uniform, stable and designated by an appropriate denomination.
Period of protection
Article 6
The period of protection of a variety shall expire after twenty five years, and in the case
of trees and vines it shall expire thirty five years from the day of the grant of the
breeder’s right.
2. NEW VARIETY
Article 7
A variety shall be considered new if, at the date of filing of the application for a variety
protection, the propagating or harvested material of the variety has not been sold or
otherwise disposed of to others, by or with the consent of the breeder, for the purpose of
exploitation of the variety in Montenegro for the period longer than one year or in a
territory other than Montenegro for the period longer than four years or, in the case of
trees and vines, longer than six years from the said date.
The variety referred to in the paragraph 1 of this Article shall also be considered new in
cases when it is disposed of to others in one of the following ways:
1) By a contract on the transfer of the breeder’s right;
2) By a contract on the basis of which the propagating material of the variety is
multiplied on behalf of the holder of the breeder’s right, provided that the
propagating material multiplied is returned to the holder of the breeder’s right
and that the propagating material multiplied is not used for production of another
variety;
3) By a contract on the basis of which researches are made in the experimental field
and in laboratories, for the purpose of variety evaluation.
3. DISTINCTNESS
Article 8
The variety shall be deemed to be distinct if it is clearly distinguishable from any other
variety whose existence is a matter of common knowledge at the time of the filing of the
application.
In particular, the filing of an application for granting of a breeder’s right or for entering
of another variety into an official register of varieties, in any country, shall be deemed to
render that other variety a matter of common knowledge from the date of the
application, provided that the application leads to the granting of a breeder’s right or to
the entering of the said other variety into the official register of varieties, as the case
may be.
The methods for checking the distinctness of a variety shall be laid down by the
Ministry responsible of agriculture (hereinafter referred to as: Ministry).
4. UNIFORMITY
Article 9
The variety shall be deemed to be uniform if, subject to the variation that may be
expected from the particular features of its propagation, it is sufficiently uniform in its
relevant characteristics.
The methods for checking the uniformity of a variety shall be laid down by the Ministry.
5. STABILITY
Article 10
The variety shall be deemed to be stable if its relevant characteristics remain unchanged
after repeated propagation or, in the case of a particular cycle of propagation, at the end
of each such cycle.
The methods for checking the stability of a variety shall be laid down by the Ministry.
6. VARIETY DENOMINATION
Variety
Article 11
The variety denomination may be a word, a combination of words, a combination of
words and numbers or a combination of letters and numbers, meaningful or
meaningless, provided that the designation enables the variety to be identified.
Where a variety denomination has already been used in Montenegro or some other
country or where an application is filed or the denomination already registered in
Montenegro or some other country, only the variety denomination which has been
proposed may be used in the protection procedure before the competent authority.
Where a variety denomination proposed is inappropriate for use in Montenegro, the
breeder shall propose another denomination which, if it is appropriate, shall be
registered in the Register of Applications and the Register of Protected Varieties.
A variety denomination may not consist solely of figures unless this is an established
practice for designating specific varieties. A variety denomination may not mislead or
cause confusion concerning the characteristics, value or identity of the variety or the
identity of the breeder. A variety denomination shall be different from any other
denomination used on the territory of UPOV Members for designation of existing
variety of the same plant species or a closely related species.
Any person who markets or advertises the propagating material of a variety protected
shall use the registered variety denomination.
The obligation concerning the use of the registered variety denomination shall not
expire even after the expiration of the period of variety protection referred to under the
Article 6 of this Law, except where, in accordance with the provisions of paragraph 8 of
this Article, prior rights prevent such use.
When a variety is marketed or advertised, a trademark, trade name or other similar
indication may be associated with the registered variety denomination, provided that the
variety denomination is easily distinguishable.
Where use of a variety denomination is forbidden to a person who is bound to use it, for
reasons of any of the prior rights of a third person, the competent authority in
responsible for plant variety protection (hereinafter referred to as: competent authority)
shall request from the breeder to propose another denomination for the variety.
Denomination Proposal
Article 12
The applicant shall propose a variety denomination in the application.
The applicant may temporarily postpone the proposal of a denomination, but not longer
than 30 days from the day of filing the application. If the applicant fails to submit the
proposal in due time, the competent authority shall reject the application.
An interested person may, within the period of 60 days from the date of publication of
the proposed denomination, file an objection to the proposed denomination.
The competent authority shall notify the applicant of the objection referred to in
paragraph 3 of this Article and invite him to submit a reply to the objection within the
period of 30 days from the day of the receipt of the notification.
In his reply to the objection, the applicant may propose a new denomination for the
variety.
In case the denomination proposed does not comply with this Law, the competent
authority shall order the applicant to file a proposal for a new denomination of the
variety within the period of 60 days from the day of the receipt of the notification.
If the applicant fails to submit the proposal of the new denomination within the
prescribed period of time, the competent authority shall reject the application.
The variety denomination is granted by the competent authority in the decision on
variety protection.
Reasons for Rejection of Denomination Proposed
Article 13
The competent authority shall reject the proposal of a variety denomination, which:
1) Is inappropriate for a variety identification;
2) Consists solely of signs or indications that may serve for indication of a variety,
kind, quality, quantity, intended objective, value geographic origin or time of
production;
3) Is contrary to Article 11 of this Law;
The Ministry shall prescribe which species are to be deemed closely related.
Denomination Cancellation
Article 14
The competent authority shall cancel a variety denomination under the circumstances
referred to in Article 13 paragraph 1 of this Law, or on the basis of a court decision
prohibiting the use of the denomination.
The competent authority shall issue a notification on cancellation of the variety
denomination and invite the holder of the breeder’s right to propose a new denomination
within the period of 30 days from the day of receipt of the notification.
III VARIETY PROTECTION PROCEDURE
1. APPLICATION
Article 15
The procedure for protection of a variety instigated by the filing of an application filed
to the competent authority by the breeder or his representative.
The form and contents of the application referred to in paragraph 1 of this Article shall
be prescribed by the Ministry.
Additional Information
Article 16
The application referred to in Article 15, paragraph 1 of this Law shall be supplemented
by the information, documents and material necessary for examination purposes.
The method of submission of the information documents and material referred to in
paragraph 1 of this Article shall be prescribed by the Ministry.
Examination of the Application
Article 17
The competent authority shall examine whether the application is complete, i.e. whether
it meets the requirements as laid down by this law.
If the application is found not to be complete, the competent authority shall, stating the
reasons, invite the applicant to correct the deficiencies identified within the period of 30
days from the day of receipt of the notification.
If the applicant does not correct deficiencies within the period referred to in paragraph 2
of this Article, the competent authority shall reject the application.
Entry into the Register of Applications
Article 18
Where it is established that the application meets the requirements, the competent
authority shall register it into the Register of Applications.
The contents of the Register of Applications shall be prescribed by the Ministry.
The Register of Applications shall be kept by the competent authority.
2. RIGHT OF PRIORITY
Article 19
Any breeder who has duly filed an application for the protection of a variety with the
competent authority of another UPOV member for the grant of a breeder’s right shall
enjoy a right of priority for a period of twelve months from the day of filing the
application.
If two or more breeders have independently bred or discovered and developed a new
variety, the right of priority shall be enjoyed by the breeder who was the first to file an
application for the variety protection to the competent authority.
In order to avail himself of the right of priority, the breeder shall furnish the competent
authority with the evidence on the priority date within a period of three months.
If the competent authority accepts the evidence on the priority date, the application shall
be deemed as filed on the priority day.
The breeder shall be allowed a period of two years after the expiration of the period of
priority or, where the first application is rejected or withdrawn, an appropriate time after
such rejection or withdrawal, in which to furnish, to the competent authority, any
necessary information, document or material required for the purpose of the
examination of the application.
The appropriate time referred to in paragraph 5 of this Article shall be prescribed by the
Ministry shall.
3. VARIETY EXAMINATION
Examination
Article 20
Any decision to grant a breeder’s right shall require an examination for compliance with
the conditions under this Law. In the course of the examination, the competent authority
may grow the variety or carry out other necessary tests, cause the growing of the variety
or the carrying out of other necessary tests, or take into account the results of growing
tests or other trials, which have already been carried out. For the purposes of
examination, the competent authority may require the breeder to furnish all the
necessary information, documents or material.
Examiner
Article 21
Examination of a variety may be carried out by a natural or legal person that meets the
requirements for carrying out such examination in terms of human resources, facilities
and equipment (hereinafter referred to as: examiner).
Requirements that need to be met by the examiner shall be prescribed by the Ministry.
Compliance with requirements referred to in paragraph 2 of this Article shall be
prescribed by the competent authority.
Processing of Examination Results
Article 22
The competent authority shall conclude the contract with the examiner on the basis of
public announcement procedure.
The competent authority shall process the examination results obtained from the
examiner.
The Ministry shall prescribe the methods for processing of the results referred to in
paragraph 2 of this Article.
4. DECISION ON VARIETY PROTECTION AND GRANT OF BREEDER’S RIGHT
Article 23
Based on examination results, the competent authority shall issue a decision on
protection of the variety or refusal of the application for the protection of the variety, as
the case may be.
Based on the decision on protection of the variety, the variety shall be registered into the
Register of Protected Varieties.
The applicant shall have the right to lodge an appeal to the Ministry against the decision
on refusal of the variety protection.
In the appeal procedure, the examination of the variety in the examination field and the
laboratory for the purpose of the supervision shall be conferred to another examiner.
When the supervision results confirm that the variety meets the requirements for
protection and entry into the Register of Protected Varieties, the supervision costs shall
be borne by the examiner who initially presented the examination results.
When the supervision results confirm the initial examination results, the supervision
costs shall be borne by the applicant who has lodged the appeal.
The contents of the Register of Protected Varieties shall be prescribed by the Ministry.
The Register of Protected Varieties shall be kept by the competent authority.
The information on the variety protection, including the variety denomination and
information on the breeder, the holder of the right and their domicile or corporate
domicile, as the case may be, shall be published in the ''Official Journal of Montenegro
of Montenegro'', within the period of 30 days from the day of entry in the Register of
Protected Varieties.
Availability of Information and Confidentiality
Article 24
Any interested person may peruse the following:
1) the Register of Applications for Variety Protection;
2) the results of variety examination in the protection procedure;
3) the Register of Protected Varieties.
When a variety production requires repeated use of another variety (component), the
applicant may request in his application that the documents and results of component
examination be treated as confidential.
5. APPEAL
Right to Appeal
Article 25
Any interested person who alleges that the applicant is not entitled to the breeder’s right
or that he does not have the right of priority or that conditions for protection of a variety
under this Law have not been complied with, may lodge an appeal to the Ministry with
respect to the entry of the application into the Register of Application or to the entry of
the variety into the Register of Protected Varieties within the period of 60 days from the
day of publicizing the information on the entry.
The appeal shall be lodged in writing, accompanied with the appropriate evidence.
The appeal referred to in paragraph 1 of this Article shall be forwarded to the applicant
or holder of the right, together with an invitation to provide a reply to the appeal within
the period of 15 days from the date of the receipt of the complaint.
Decision on the Appeal to the Entry into the Register of Applications
Article 26
If the applicant fails to present a reply to the appeal within the period prescribed, the
application shall be deemed withdrawn.
If the applicant presents a reply to the appeal and demands the decision on his
application, with or without amendments, the decision on the application and the appeal
shall be made concurrently.
Appeal to Registration in the Register of Protected Varieties
Article 27
The appeal to registration in the Register of Protected Varieties may be submitted by a
person who alleges that the variety is not new, distinct, uniform or stable.
The appeal referred to in paragraph 1 of this Article shall be lodged to the Ministry.
Additional examination of the variety may be ordered in the appeal procedure in order
to verify the statements of the appeal.
At the request of the body that decides the appeal, the person who has lodged the appeal
shall present, within the period of 15 days, the additional information and documents to
substantiate the appeal or reproduction material necessary for the examination.
When the person who lodged the appeal fails to act in compliance with paragraph 3 of
this Article, the appeal shall be rejected.
Based on the findings in the proceedings initiated upon the appeal, the appeal may be
either accepted, thus canceling the entry into the Register of Protected Varieties, or
dismissed.
IV. THE RIGHTS AND OBLIGATIONS OF THE BREEDER
1. RIGHTS
Scope of the Breeder’s Right
Article 28
The holder of the breeder’s rights shall be entitled to indication of his name and the
denomination in acts, registers, documents and publications.
The propagating material of a protected variety shall be used only with authorization of
the holder of the breeder’s right, who sets the conditions for granting the authorization.
Subject to Articles 29 and 30 of this Law, the following acts in respect of the
propagating material of a protected variety shall require the authorization of the breeder:
1) Production or reproduction (multiplication) of the variety protected;
2) Conditioning for the purpose of propagation of the protected variety;
3) Offering the protected variety for sale;
4) Selling or other marketing of the protected variety;
5) Exporting or importing of the protected variety;
6) Stocking for any of the purposes referred to in items 1 to 5 of the paragraph 3 of
this Article.
Subject to Articles 29 and 30 of this Law, acts referred to in the paragraph 3 items 1 to 6
of this Article, in respect of the harvested material, including whole plants and parts of
plants obtained through the unauthorized use of the propagating material of the
protected variety shall require the authorization of the holder of the breeder’s right,
unless the holder has had reasonable opportunity to exercise his right in relation to the
propagating material concerned.
The authorization of the holder of the breeder’s right shall also be required for the acts
referred to in paragraphs 3 and 4 of this Article for a variety:
1) Which is essentially derived from the protected variety where the protected
variety is not in itself an essentially derived variety;
2) Which is not clearly distinguishable from the protected variety; and
3) Whose production requires the repeated use of the protected variety.
A variety shall be deemed to be essentially derived from the initial variety when:
1) It is predominantly derived from the initial variety, or from a variety that is itself
predominantly derived from the initial variety, while retaining the expression of
the essential characteristics resulting from the genotype or combination of
genotypes of the initial variety;
2) It is clearly distinguishable from the initial variety; and
3) With the exception of the differences resulting from the act of derivation, it
conforms to the initial variety in the expression of the essential characteristics
that result from the genotype or a combination of genotypes of the initial variety.
For the purpose of paragraph 5, subparagraph 1 and paragraph 6 of this Article, an
essentially derived variety may be obtained, for example, by selection of a natural or
induced mutant, or of a somaclonal variant, the selection of a variant individual from
plants of the initial variety, backcrossing or transformation by genetic engineering.
Exceptions to the Breeder’s Right
Article 29
Authorization of the holder of the breeder’s right shall not be required for the acts
undertaken for:
Personal use and for non-commercial purposes;
Experimental purposes;
For the purpose of breeding other varieties, and, except where the provisions of
Article 28 paragraph 5 apply, acts referred to in Article 28 paragraphs 3 and 4 of
this Law, in respect of such other varieties.
The Ministry may, taking into account the need for safeguarding the breeder’s rights,
restrict within reasonable limits the breeder’s right, subject to remuneration that shall not
be lower than the market one, in relation to selected agricultural crops to allow farmers to
use for propagation purposes, on their own holdings, the harvested material obtained by
planting the protected variety on their own holdings.
The Ministry shall prescribe the list of agricultural crops referred to in paragraph 2 of this
Article.
The exception referred to in paragraph 1 and 2 of this Article shall not apply to fruits,
ornamentals and vegetables.
Exhaustion of the Breeder’s Right
Article 30
The breeder’s right shall not extend to acts concerning any material of the protected
variety, or of a variety covered by the provisions of Article 28, paragraph 5 of this Law,
which has been sold or otherwise marketed by the breeder or with his consent in the
territory of Montenegro, or any material derived from the said material, unless such
acts:
1) Involve further propagation of the variety in question, or
2) Involve an export of material of the variety, which enables the propagation of the
variety, into a country which does not protect varieties of the plant genus or
species to which the variety belongs, except where the exported material is for
final consumption purposes.
For the purposes of paragraph 1 of this Article, “material” shall mean, in relation to a
variety:
1) Propagating material of any kind,
2) Harvested material, including entire plants and parts of plants, and
3) Any product made directly from the harvested material.
Provisional Protection
Article 31
During the period between publication of the application for the grant of the variety
protection and the granting of the right on the variety protection, the holder of the
breeder’s right shall be entitled to equitable compensation from any person who, during
the period concerned, has carried out acts which, once the right is granted, require the
authorization of the holder of the breeder’s right, as provided in Article 28 of this Law.
Several Breeders, Breeder and Employer
Article 32
If two or more persons have jointly bred or discovered and developed a variety, they
shall have equal rights to protection. The rights and obligations of such persons may be
regulated by a contract.
When a variety is bred or discovered and developed during the employment, the rights
of the employee who bred, discovered or developed the variety concerned and the rights
of the employer shall be laid down by this Law, general legal acts and a contract
between the employer and the employee or their representatives, as the case may be.
2. OBLIGATIONS
Maintenance of the Protected Variety
Article 33
The holder of the breeder’s right shall ensure maintenance of the protected variety
unchanged during the period of protection.
Monitoring of Variety Maintenance
Article 34
The competent authority shall issue a decision on cancellation of the breeder’s right if it
is established that the holder of the breeder’s right has failed to maintain the variety.
Providing Samples of the Variety
Article 35
At the request of the competent authority, the holder of a breeder’s right shall provide an
appropriate quantity of samples of the propagating material of the protected variety
deemed necessary for verifying the maintenance of the variety.
At the request of the competent authority, the holder of the breeder’s right shall
maintain or keep the sample of the variety.
V LICENSES
Transfer and Licensing of Breeder’s Right
Article 36
A holder of the breeder’s right may transfer his right to a protected variety as a whole,
or license some of his rights to another person.
The transfer of right and granting the license shall be made by a written contract, which
shall include provisions on the following: the scope of right, the period of time for
which the right is transferred and the fee for use of the right, if any.
For the purpose of entry into the Register of Protected Varieties, the holder of the
breeder’s right shall inform the competent authority of any transfer or license of rights.
The information shall include the particulars of the transferee or the licensee, scope of
right, and the period of time for which the right is transferred or licensed.
Compulsory License
Article 37
When the holder of the breeder’s right refuses to transfer his right of economic use of
the variety protected to other persons, or when he sets unjustified conditions for such
transfer, the competent authority may grant the compulsory license, provided that the
use is of public interest for development of plant production, for protection and
development of the environment or for a specific economic branch.
Prior to filing the request referred to in paragraph 1 of this Article, the interested person
shall have to provide evidence on his attempt to obtain the authorization from the holder
of the breeder’s right for the acts referred to in Article 28 of this Law under reasonable
economic conditions, and the evidence that the authorization was not granted to him
within the reasonable period of time.
The compulsory license referred in paragraph 1 of this Article shall be granted only to
the interested person who proves its capability and capacity required for the economic
use of the protected plant variety.
Time Limit for Requesting the Compulsory license
Article 38
The request for grant of the compulsory license may not be filed earlier than four years
from the date of filling the application, or three years from the date of grant of the
breeder’s right, whichever expires later.
The compulsory license shall not be granted if the holder of the breeder’s right proves
that there are reasons justifying his refusal to grant the authorization for use of the
protected variety or conditions for such a use.
Compulsory License Fee
Article 39
The holder of the compulsory license shall pay the holder of the breeder’s right the fee
mutual agreed. In the absence of the agreement on the amount and method of paying the
fee, the amount of the fee shall be set by the competent court, taking into account the
circumstances of each individual case and the economic value of the compulsory
license.
Scope and Duration of the Compulsory License
Article 40
The scope and the duration of the compulsory license shall be limited to the purpose it
was granted for.
The compulsory license shall not be exclusive.
The compulsory license may be transferred only together with the company or part of
the company in which it is used, as the case may be.
The compulsory license shall be granted primarily for the purposes of supplying the
domestic market.
The compulsory license may be cancelled if and when the circumstances that have led to
its grant cease to exist and if it is unlikely that they will reoccur. Upon the substantiated
request, the competent authority shall review the existence of such circumstances.
The compulsory license may also be cancelled when the competent authority establishes
that the person to whom it was granted fails to meet the conditions under which it was
granted.
Obligation to Supply Propagating Material
Article 41
The holder of the breeder’s right shall, at the request of the competent authority and
subject to payment of the appropriate remuneration, supply the propagating material
necessary for utilization of the compulsory license to the person to whom the
compulsory license has been granted.
VI. TERMINATION OF BREEDER’S RIGHT
Reasons for Termination of Breeder’s Right
Article 42
The breeder’s right shall terminate before the term referred to under the Article 6 of this
Law if:
1) The right holder informs the competent authority in writing form that he wants
to terminate the breeder’s right, effective as of the date stated or as of the filing
date;
2) The holder of the breeder’s right dies or ceases to exist without a heir or
successor in rights, on the date of death or cessation;
The decision on termination of the breeder’s right shall be made by the competent
authority which shall enter it into the Register of Protected Varieties.
Nullity
Article 43
The competent authority may declare null and void the decision on protection of the
variety throughout the period of protection, ex officio or at the proposal of an interested
person if:
1) It is established that the variety was neither new nor distinct at the time of the
grant of the breeder’s right;
2) It is established that the decision on granting the breeder’s right has been
essentially based upon information and documents furnished by the applicant,
while conditions of stability and uniformity were not complied with at the time
of the grant of the breeder’s right;
3) The breeder’s right has been granted to a person who is not entitled to it,
except in the case where, in the meantime, it has been transferred to the person
who is so entitled.
The decision referred to in paragraph 1 of this Article shall be entered into the Register
of Protected Varieties.
After the decision referred to in paragraph 1 of this Article becomes final and
enforceable, the competent authority shall delete the variety from the Register of the
Protected Varieties.
An appeal against the decision referred to in paragraph 1 of this Article may be lodged
to the Ministry.
Cancellation of the Decision
Article 44
The competent authority shall cancel the decision on protection of the variety if:
1) It is established that the variety is no longer uniform or stable;
2) The holder of the breeder’s right fails to furnish the competent authority with
information, documents or material deemed necessary for verification of the
variety maintenance;
3) The holder of the breeder’s right fails to propose another denomination for the
variety if the variety denomination has been cancelled after the grant of the right;
4) The breeder fails to pay the fee for maintenance of the breeder’s right;
5) The annual costs of variety protection have not been paid on the due date.
The decision referred to in paragraph 1 of this Article shall be entered into the Register
of Protected Varieties.
After the decision referred to in paragraph 1 of this Article becomes final and
enforceable, the competent authority shall delete the variety from the Register of the
Protected Varieties.
VII. COSTS
Article 45
The costs of variety examination in the examination field and the laboratory and annual
costs of variety protection shall be borne by the applicant or the holder of the breeder’s
right, as the case may be.
The amount of the costs referred to in paragraph 1 of this Article shall be prescribed by
the Ministry.
VIII. CIVIL LAW PROTECTION
Article 46
The holder of the breeder’s right or his successor in rights or heir, as the case may be,
shall be entitled to file a civil action against the person infringing his right through
actions referred to under the Article 28 paragraph 2, 3 and 4 of this Law without
authorization, and shall have the right to claim the following:
1) Ascertaining of infringement of the breeder’s right;
2) Prohibition of actions infringing the breeder’s right;
3) compensation for damages caused by infringement, including direct damages,
lost profits and justifiable legal costs and expenses;
4) Publicizing of the court decision at the expense of the defendant;
5) Forfeiture or destruction, without compensation of any sort, of the items and
equipment predominantly used for infringement of the breeder’s right;
6) Forfeiture or destruction, without compensation of any sort, of infringing
products.
General regulations on compensation of damages shall be applied to issues related to
compensation of the damage done by infringement of the breeder’s right that have not
been provided for by this law.
If a violation of rights has been committed intentionally or out of gross negligence, the
plaintiff may, instead of the amount of compensation referred to paragraph 1, item 3 of
this Article, claim an amount equal to the threefold amount of remuneration that would
have been paid had the use of the right been lawful.
Statute of Limitations
Article 47
The action referred to in Article 46, paragraph 1 of this Law may be filed within a
period of three years from the date of obtaining information of the infringement and the
offender, but not later than five years from the date on which the infringement has been
committed.
Proceedings for the violation of breeder’s right shall be administered in an expedited
manner.
Provisional Measures
Article 48
At the request of a right holder who makes it credible that his right has been infringed,
or that such infringement is imminent, the court may order a provisional measure
involving the seizure or removal from the market of the object with which the
infringement has been made and/or a provisional measure involving a prohibition
against the acts under way, which could be conducive to violation.
Securing of Evidence
Article 49
At the request of the right holder who makes it credible that his/her right has been
violated, or that such violation is imminent or that irreparable harm is likely to occur, or
that there is a reasonable doubt that the evidence of that will be destroyed or that it will
not be possible to obtain it later on, the court may order a measure to secure evidence
without giving prior notice to or hearing the person from which evidence is to be
collected.
For the purposes of Paragraph 1 of this Article, the securing of evidence shall mean the
inspection of premises, books, documents, databases, etc., as well as the seizure of
documents and infringing goods, depositions of witnesses and expert witnesses.
The court decision ordering measures to secure evidence shall be served to the person
from which evidence is to be collected, on the occasion of the collection of evidence,
and to an absent person, as soon as that becomes possible.
Request for Provisional Measures
Article 50
Measures referred to in Articles 48 and 49 of this Law may be requested even before
filing an action.
In the case referred to in Paragraph 1 of this Article, decision establishing the measure
shall contain the period in which the action has to be filed, which shall not be shorter
than 30 days from the execution of the measure.
An appeal lodged against a decision ordering a provisional measure shall not stay the
execution of the decision.
Obligation of the Defendant to Furnish the Information
Article 51
The court may order the defendant to furnish information about third parties related to
the violation or hand over documents relating to the violation.
The person failing to meet the obligation referred to in paragraph 1 of this Article liable
shall be liable for any damages thus incurred.
IX. INSPECTORIAL SUPERVISION
Article 52
For the purpose of protection of breeder’s rights granted under this Law, inspectorial
supervision over the enforcement of this Law shall be performed by the competent
authority through a phytosanitary inspector, in compliance with the law.
Any provisions of other laws or regulations that regulate the production, certification
and marketing of material of varieties or the importing or exporting of such material,
shall not affect the application of the provisions of this Law.
1. POWERS OF A PHYTOSANITARY INSPECTOR
Article 53
A phytosanitary inspector shall perform inspectorial supervision particularly in regard
to:
1) Examination of distinctness, stability or uniformity of varieties in the
experimental field or laboratory of the examiner;
2) Examiner’s compliance with the conditions for examination of varieties in the
experimental field or laboratory;
3) Unauthorized acts in relation to the protected variety referred to in Article 28 of
this Law;
4) Use of the protected variety denomination;
5) Sampling of propagating material, free of charge, for the purpose of establishing
the compliance with the conditions prescribed by this Law.
2. ADMINISTRATIVE MEASURES AND ACTIONS
Article 54
In cases where a breach of law or other regulation has been established, a phytosanitary
inspector shall, in addition to administrative measures and actions laid down by the law
governing the inspectorial supervision, undertake the following administrative measures
and actions:
1) Prohibit placing on the market, import or export of propagating material of
varieties if it is established that the propagating material fails to meet the
conditions prescribed by this Law, or that the right of the holder of the breeder
right has been infringed;
2) Prohibit the examiner the examination of varieties in the experimental field or in
the laboratory if he fails to remove the deficiencies in regard of conditions laid
down by this Law.
X. PENAL PROVISIONS
Article 55
A legal person shall be fined by a fine amounting to between EUR 700 and EUR
25,000, if it:
1) Uses the variety denomination not granted by the decision of the competent
authority (Article 12 paragraph 8);
2) Without authorization by the holder of the breeder’s right, produces or
reproduces, conditions for the purpose of propagation of the protected variety,
offers for sale, sells or markets in any other way, exports or imports, or stocks
for any of the said purposes the protected variety (Article 28, paragraph 3).
For a violation under the first paragraph of this Article, a natural person and the
responsible person of the legal entity shall be fined by a fine amounting to between
EUR 100 and EUR 3,000.
For infringement under the first paragraph of this Article, an entrepreneur shall be fined
by a fine amounting to between EUR 300 and EUR 8,000.
For the offence referred to in paragraph 1 of this Article, in addition to the fine, a
measure of prohibition of activity ranging from one to six months, may be imposed on
the company, other legal person or entrepreneur.
Article 56
A legal person shall be fined by a fine amounting to between EUR 500 and EUR
20,000, if it at the request of the competent authority fails to supply to the person to
whom the compulsory licence was granted the appropriate quantity of propagating
material necessary for use of the compulsory licence (Article 41).
For a violation under the first paragraph of this Article, a natural person and the
responsible person of the legal entity shall be fined by a fine amounting to between
EUR 50 and EUR 2,000.
For infringement under the first paragraph of this Article, an entrepreneur shall be fined
by a fine amounting to between EUR 200 and EUR 6,000.
XI. TRANSITIONAL AND FINAL PROVISIONS
Protection of Known Varieties
Article 57
Notwithstanding Article 7 of this Law, the competent authority may grant the breeder’s
right for the variety that is not new on the day this Law enters into force when:
1) The application has been filed no later than 12 months from the day this Law
entered into force; and
2) The variety is:
- Registered in the appropriate variety register recognized by the competent authority;
- The subject of the breeder’s right in a UPOV member state, or the subject of the application in a UPOV member state, where the application leads to grant
of the breeder’s right; or
- The subject of the evidence on the date when the variety ceased to be new in accordance with Article 7 of this Law, which the competent authority finds
acceptable.
Duration of the breeder’s right granted under paragraph 1 of this Article shall starts from
the date of:
- Registration referred to under the paragraph 1, item 2, indent 1 of this Article;
- Grant of the breeder’s right referred to under the paragraph 1, item 2, indent 2 of this Article; or
- When the variety ceased to be new in accordance with paragraph 1, item 2, indent 3 of this Article.
When relevant to the decision of the competent authority, the earliest of the dates
referred to in paragraph 2 of this Article shall apply.
When the breeder’s right is granted under paragraph 1 of this Article, the holder of the
right shall grant a license under reasonable terms in order to provide for the use of the
variety that the third party began in good faith prior to filing of the application for the
grant of the right under paragraph 1 of this Article.
Article 57a
Provisions of the Law on Enforcement of the Legislation that Regulates Protection of
Intellectual Property Rights ("Official Gazette of the Republic of Montenegro", No.
45/2005) and the Regulation on Actions of the Customs Authority Applicable To Goods
Suspected Of Infringement Of Intellectual Property Rights ("Official Gazette of the
Republic of Montenegro", No. 25/2005) shall apply mutatis mutandis to breeders’ rights
established by this Law.
Article 58
Bylaws for implementation of this Law shall be adopted within the period of one year
from the day this Law enters into force.
Pending the adoption of the regulations based on this Law the regulations adopted under
the Law on Protection of Varieties of Agricultural and Forest Plants (Official Journal of
FRY, No. 12/98, 28/ 2000, 37/02) provided that they not in the contravention of this
Law.
Article 59
On the day this Law enters into force, the Law on Protection of Varieties of Agricultural
and Forest Plants (Official Journal of FRY, No. 12/98, 28/ 2000, 37/02) shall cease to be
effective.
Entering into force
Article 60
This Law shall enter into force on the eighth day after its publishing in the Official
Journal of the Republic of Montenegro.