Article 5 · Commission Implementing Regulation (EU) 2021/384

Contents

Article 5Denomination that is identical or may be confused with the denomination of another variety#

1.There is an impediment for the designation of a variety denomination where it is identical or may be confused with:

(a)a variety denomination under which another variety of the same or a closely related species is entered in an official register of varieties; or

(b)a variety denomination under which material of another variety has been marketed in a Member State or in the territory of a contracting party of the International Union for the Protection of New Varieties of Plants (‘UPOV’);

unless the other variety no longer remains in existence and its denomination has acquired no special significance.

2.In order to establish whether there is a confusion for the purposes of paragraph 1, the competent authority shall first analyse each of the visual, phonetical and conceptual aspects separately and then make an overall assessment, taking also into account denominations of varieties of the same or a closely related species, provided that the varieties concerned referred to in this paragraph and in paragraph 1 have been either the subject of a plant variety right or of an application thereof, or officially accepted for marketing, in the territory of one of the following:

(a)the Union;

(b)the European Economic Area;

(c)a contracting party of the UPOV;

(d)a Member of the Organisation for Economic Cooperation and Development (OECD).

3.For the purposes of this Article, the following definitions apply:

(a)‘closely related species’ means the species listed in the Annex;

(b)‘official register of varieties’ means the Common catalogue of Varieties of Agricultural Plant Species, referred to in Article 17 of Directive 2002/53/EC or in Article 17 of Directive 2002/55/EC, or the OECD Variety List, or a plant variety register of a Member of UPOV’;

(c)‘a variety no longer remains in existence’ means a variety of which material no longer exists;

(d)‘the denomination has acquired no special significance’ means a situation where the denomination of a variety which has been entered in an official register of varieties is considered to have lost special significance on the expiry of a 10-year period after deletion from that register, unless there are exceptional circumstances.