New Zealand Legislation: Acts
Acts are laws made by Parliament
(1) Subject to section 19 of this Act, a grantee shall have the exclusive right—
(a) To produce for sale, and to sell, reproductive material of the variety concerned:
(b) If that variety is a plant of a type specified by the Governor-General by Order in Council for the purposes of this paragraph, to propagate that variety for the purposes of the commercial production of fruit, flowers, or other products, of that variety:
(2) Notwithstanding subsection (1) of this section the Minister may, by notice in the Journal, and after ensuring that the grantee under the grant concerned will be adequately compensated, impose such restrictions on the exercise of the rights of that grantee in respect of any specified variety as the Minister thinks necessary in the public interest during a state of national emergency declared under the Civil Defence Emergency Management Act 2002.
(3) A grant may be assigned, mortgaged, or otherwise disposed of; and may devolve by operation of law.
(4) The rights of a grantee under a grant are proprietary rights, and their infringement shall be actionable accordingly; and in awarding damages (including any exemplary damages) or granting any other relief, a Court shall take into consideration—
(a) Any loss suffered or likely to be suffered by that grantee as a result of that infringement; and
(b) Any profits or other benefits derived by any other person from that infringement; and
(c) The flagrancy of that infringement.
(5) Where there is imported into New Zealand any reproductive material of a protected variety, any propagation, sale, or use, of that material—
(a) As reproductive material; and
(b) Without the authority of the grantee concerned,—
constitutes an infringement of the rights of that grantee under this section.
(6) The importation into New Zealand,—
(a) From a country that is not a convention party of produce of a protected variety; or
(b) From a convention party of produce of a protected variety in respect of which, under the law of that country, it is not possible to make the equivalent of a grant,—
without the consent of the grantee is an infringement of the grantee's rights under this section.
(7) The sale under the denomination of a protected variety of reproductive material of some other variety constitutes an infringement of the rights under this section of the grantee of that protected variety, unless the groups of plants to which those varieties belong are internationally recognised as being distinct for the purposes of denomination.
(8) Where, in any proceedings for the infringement of the rights under this section of a grantee, it is proved or admitted that an infringement was committed but proved by the defendant that, at the time of that infringement, the defendant was not aware and had no reasonable grounds for supposing that it was an infringement, the plaintiff shall not be entitled under this section to any damages against the defendant in respect of that infringement, but shall be entitled instead to an account of profits in respect of that infringement.
(9) Nothing in subsection (8) of this section affects any entitlement of a grantee to any relief in respect of the infringement of that grantee's rights under this section other than damages.
Compare: 1973 No 37 s 22
Subsection (2) was amended, as from 1 December 2002, by section 117 Civil Defence Emergency Management Act 2002 (2002 No 33) by substituting the words “a state of national emergency declared under the Civil Defence Emergency Management Act 2002”
for the words “a national emergency”
See sections 118 to 121 of that Act as to the transitional provisions.
Subsection (6)(a) and (b) was amended, as from 14 October 1999, by section 2(4) Plant Variety Rights Amendment Act 1999 (1999 No 122) by substituting the words “convention party”
for the words “UPOV country”
.