### Plant Varieties Protection Ordinance 《植物品種保護條例》

25. Rights of grantees
(1) Subject to section 27, a grantee shall have the exclusive right—
(a) to produce for sale, and to offer for sale or sell, reproductive material of the variety concerned;
(b) to import or export reproductive material of the variety concerned;
(c) if that variety is a plant of a type prescribed for the purposes of this section, to propagate that variety for the purposes of the commercial production of fruit or flowers of that variety;
(d) subject to any terms and conditions that grantee may specify, to authorize, by licence or otherwise, any other person or persons to do any of the things described in paragraph (a), (b) or (c).
(2) 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.
(3) Where there is imported into Hong Kong 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.
(4) The importation into Hong Kong—
(a) from a country that is not a UPOV country of harvested material of a protected variety; or
(b) from a UPOV country of harvested material 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 Ordinance.
(5) 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 recognized as being distinct for the purposes of denomination.
(6) Where, in any proceedings under this section for the infringement of the rights 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.
(7) Nothing in subsection (6) affects any entitlement of a grantee to any relief in respect of the infringement of that grantee’s rights under this Ordinance other than damages.

### Plant Varieties Protection Ordinance 《植物品種保護條例》

26. Exceptions to grantees’ rights
Notwithstanding section 25 it shall not be an infringement of the rights of a grantee for any person—
(a) to use reproductive material from a protected variety for human consumption or other non-reproductive purposes;
(b) to use, propagate or grow a protected variety for—
(i) non-commercial purposes;
(ii) experimental or research purposes; or
(iii) the purposes of breeding a new variety; or
(c) engaged in farming activities for the purpose of safeguarding agricultural or horticultural production, to use for reproductive purposes on his own holding, reproductive material from a protected variety where the type within which the protected variety is classified has been prescribed for the purposes of this section as exempt from the rights of a grantee and where such reproductive material—
(i) has been legitimately obtained by purchase or otherwise with the authority of the grantee concerned; or
(ii) having been so legitimately obtained has subsequently been propagated or grown on his own holding.

27. Rights under licence
Where a person has been authorized by licence or otherwise under section 25(1)(d) that person so authorized shall have the same rights as that grantee to take proceedings in respect of any infringement of the rights of that grantee in respect of the variety concerned affecting the rights given under that licence and committed after it was granted.

28. Notice of protection
(1) Any person who—
(a) has acquired rights in respect of a variety under section 17(1) or 25; and
(b) sells any reproductive material of that variety,
shall take all reasonable steps, by means of suitable labelling or other identification of that material, to inform the purchaser concerned of those rights.
(2) In determining, for the purposes of section 25(6), whether or not any person had reasonable grounds for supposing that any action was an infringement of the rights of a grantee, a court may take into account the extent, if any, to which that grantee or, as the case requires, the licensee concerned had complied with subsection (1) in respect of any material in respect of which, or in respect of material propagated from which, that infringement occurred.

### Plant Varieties Protection Ordinance 《植物品種保護條例》

30. Use of denomination
Any person who sells reproductive material of—
(a) a protected variety; or
(b) a variety that was a protected variety until the grant made in respect of it expired,
shall use its denomination, and shall not associate any trade mark, trade name, or other similar indication with that denomination unless that denomination is clearly recognizable.

31. Extension of grant of plant variety rights to cover essentially derived varieties
(1) Where—
(a) after a grant is made to any person in respect of a variety (the initial variety

32. Rights of appeal
(1) Any person aggrieved by a decision of the Registrar made in respect of him to decline to make a grant under section 18 may, within 28 days after being given notice of that decision by the Registrar, appeal to the court against that decision.
(2) Any person aggrieved by the making of a grant may, at any time, appeal to the court against the making of that grant upon the ground that that grant was made in contravention of this Ordinance.
(3) Where the Registrar cancels a grant under section 21, the grantee may, within 28 days after being given notice of the cancellation by the Registrar, appeal to the court against that cancellation on the ground that it has not been established that, if that grant had not already been made, some other person making an application in respect of the variety concerned would, by virtue of section 20, be entitled to a grant in respect of that application.
(4) Any person aggrieved by any decision of the Registrar made in respect of him, not being a decision referred to in any of subsections (1) to (3)—
(a) relating to an application or the cancellation of a grant;
(b) imposing any condition in respect of a grant;
(c) declining to modify any aspect of a grant; or
(d) refusing to grant any permission or order under section 29(2),
may, within 28 days after being given notice of that decision by the Registrar, appeal to the court against that decision.
(5) The owner of a protected variety may, at any time, appeal to the court against any decision of the Registrar to grant any permission or order under section 29(2) in respect of that variety, or to extend or vary any such grant of permission or order.
(6) The person to whom any permission or order was granted under section 29(2) may, at any time, appeal to the court against any decision of the Registrar to limit, vary, or revoke that grant of permission or order, or to issue it subject to any terms or conditions.