WHAT ARE THE LEGAL CONSEQUENCES OF TRADING FAKE AND COUNTERFEIT PRODUCTS IN TURKEY?

WHAT DOES A COUNTERFEIT OR FAKE PRODUCT MEAN IN TURKEY?

In Turkish law, the expression “counterfeit product” refers to the use of a registered trademark, or of a sign so similar to it as to create a likelihood of confusion, on a product or its packaging without the consent of the trademark owner. This concept also covers the terms “knock-off”, “identical quality” or “replica” used in commercial life and in everyday speech; what is decisive in the legal assessment, however, is not the quality of the product but whether there has been a violation of trademark rights.

In practice, counterfeit and fake products are encountered most often in the ready-to-wear clothing, cosmetics, electronic accessories, luxury watch and automotive spare part sectors. Trade in counterfeit goods is in essence an infringement of intellectual property rights in Turkey. However, for a sign to benefit from this protection regime, the trademark must have been registered before the Turkish Patent and Trademark Office (TÜRKPATENT).

For unregistered signs the protection available under trademark law in Turkey cannot be invoked; in that case the general unfair competition provisions of the Turkish Commercial Code (TCC) come into play, and it becomes important for the process to be conducted with the support of a commercial law attorney.

When assessing whether a product or a sign is to be regarded as counterfeit, the basic criterion applied in legal doctrine and in case law is the likelihood of confusion (iltibas) test.

In the confusion assessment made by the Turkish courts, it is accepted that the average consumer has no opportunity to place the two signs side by side and examine them in detail. What is decisive is whether the consumer is likely to be confused on the basis of the general impression retained in his or her mind alone.

The following elements are taken into account as a whole when this examination is carried out:

• Similarity of the signs: The degree of visual, aural (phonetic) and conceptual (semantic) similarity between the trademarks.
• Classes of goods and services: Whether the goods or services on which the signs are used are of the same or a similar type.

In proceedings before the Turkish courts this finding is substantiated by the technical reports of expert panels and is freely appraised by the court. It must be stressed that: The fact that a counterfeit product is made of exactly the same material as the original, or is of high quality, does not remove the unlawful act of infringement. The only decisive point is the absence of the consent of the rights holder.

WHAT IS THE PENALTY FOR SELLING FAKE AND REPLICA PRODUCTS IN TURKEY?

The governing provision on criminal sanctions in the fight against trade in fake and replica goods is set out in Article 30 of the Industrial Property Law No. 6769 (IPL). By defining a broad range of alternative acts amounting to trademark infringement as offences, the legislature aimed to protect the property right of the trademark owner and public order in Turkey.

Under IPL Art. 30/1, a person who infringes another party’s trademark right by reproduction or by creating a likelihood of confusion and thereby produces goods, offers them for sale, sells, imports or exports them, or buys, possesses, transports or stores them for commercial purposes, is punished with imprisonment from one year to three years and a judicial fine of up to twenty thousand days. The second paragraph of the article regulates the unauthorised removal, from a product or its packaging, of symbols or signs indicating that trademark protection exists as a separate type of offence, and provides for imprisonment from one year to three years and a judicial fine of up to five thousand days for that act.

• What Are the Basic Criteria for Determining the Amount of the Penalty for Selling Counterfeit Products in Turkey?

In practice, how the penalty is to be determined in a specific case is decided in line with the general principles of the Turkish Penal Code (TPC). When the judge exercises discretion as to the amount of the penalty between the lower and upper limits laid down in the law (1 to 3 years of imprisonment), the following points are taken into account:

1. Intensity of intent and unlawful gain: The scale of the infringement, the amount of unlawful gain obtained or aimed at, and the commercial volume of the products concerned.
2. Repeat offending and the manner in which the offence is committed: Repetition of the infringement, commission of the offence within the activity of a criminal organisation, or its taking on a systematic structure are decisive factors in bringing the penalty closer to the upper limit.

For criminal liability to arise under Turkish law, the perpetrator must have acted with intent as the mental element. In other words, the perpetrator must have carried out the act although he knew that the product offered for sale or trade was counterfeit, or ought, in the ordinary course of events, to have known this. The medium in which the act takes place is irrelevant for the offence to arise. Sales made in a physical place of business, at a neighbourhood market, on social media platforms or on e-commerce marketplaces are subject to the same liability regime.

It must be emphasised that, under IPL Art. 30, an actual sale is not required for a penalty to be imposed. The acts of “offering for sale”, “storing”, “possessing” and “transporting” set out in the text of the law are independent alternative acts. Accordingly, listing a counterfeit product on a website, displaying it in a shop window or keeping it in a warehouse for commercial purposes is enough under Turkish law for the offence to be complete, even where not a single sale has yet taken place.

Finally, the position of third parties who do not sell directly but knowingly take part in the process is assessed under the complicity provisions of the TPC (incitement or aiding and abetting). Carriers that provide the logistics for counterfeit and fake products, and businesses that offer storage facilities knowing that the products are counterfeit, may also face criminal liability according to their degree of participation.

• Conditions for Benefiting from the Effective Remorse Provision in Turkey

Another critical mechanism that allows a suspect or a defendant in trademark infringement offences to escape criminal sanction entirely is the special provision set out in Article 30, paragraph 7 of the Industrial Property Law No. 6769 on effective remorse. In order to encourage the exposure of the principal perpetrators who manufacture counterfeit products or act as the main supplier, Turkish legislation grants a statutory possibility of impunity to persons who sell or possess the product.

Under IPL Art. 30/7, for a person who sells, offers for sale, delivers, transports or stores a counterfeit product to be exempted from the penalty laid down in that article, the following conditions must be met together:

1. Disclosure of the source of supply: The person must state to the judicial authorities in Turkey, with a clarity that leaves no room for doubt, where the counterfeit goods were obtained from (the manufacturer, the wholesaler or the supplier).
2. Apprehension of the perpetrators or seizure of the products: The information provided must actually enable the principal perpetrators (manufacturer/distributor) to be identified and apprehended, or other counterfeit products to be seized.
3. Time limit: This genuine disclosure must be made at the latest before the court delivers its judgment.

If the suspect or the defendant fulfils the conditions above, no penalty is imposed. Under Turkish criminal law this is not a reduction of the penalty but directly a statutory ground of impunity.

In practice, for prudent businesses or sellers who believe they have entered into an honest commercial relationship but are supplied with counterfeit goods by their supplier, IPL Art. 30/7 is the most effective legal route to escaping criminal liability entirely, by immediately reporting the source of supply to the public prosecutor during the criminal investigation, together with invoices, delivery notes and communication records.

• Who Holds the Right of Complaint in the Trade in Counterfeit and Fake Products in Turkey?

The offences of infringement of trademark rights under IPL Art. 30 fall into the category of complaint-based offences. Chief Public Prosecutor’s Offices in Turkey therefore cannot conduct an investigation ex officio (of their own motion); the start of the investigation stage depends on the existence of a duly filed complaint.

As a rule, the right of complaint belongs to the owner of the registered trademark. However, persons who have obtained an exclusive licence from the trademark holder may also exercise this right within the framework of the contract provisions and the rules of the Industrial Property Law. Where there is more than one rights holder over the trademark (co-ownership in shares or joint ownership), a complaint filed by any one of the co-owners alone is enough for the investigation to start under Turkish law.

• What Is the Time Limit for Filing a Complaint over Fake and Replica Product Sales in Turkey?

The right to complain against persons selling counterfeit and fake products is limited by preclusive periods under Turkish legislation. The rights holder must file the complaint;

1. Within six months of the date on which the act and the perpetrator became known, and
2. In any event within one year of the date on which the act was committed.

If these periods are missed, the possibility of a criminal investigation into the sale of counterfeit goods disappears. Where the process begins with a complaint duly filed in time, the ordinary eight-year statute of limitations for prosecution applies under TPC Art. 66.

• Which Courts Are Competent in Counterfeit Product Cases in Turkey?

Since cases arising from the sale of counterfeit and fake products involve an infringement of intellectual property rights, they fall within intellectual property law in Turkey. Specialised courts are competent in the criminal and civil cases arising from intellectual and industrial property law:

1. In criminal proceedings: Trials concerning the offence are conducted by the Criminal Courts of Intellectual and Industrial Property Rights (Criminal IP Courts). In courthouses where these courts do not exist, the Criminal Courts of First Instance are competent.
2. In civil proceedings: In civil cases such as damages, prevention and cessation of the infringement, the Civil Courts of Intellectual and Industrial Property Rights (Civil IP Courts) are competent, and in places where these do not exist, the Civil Courts of First Instance (acting as specialised courts).

These specialised courts operate in a limited number of major cities in Turkey, chiefly Istanbul, Ankara and Izmir. In determining the competent court, the claimant/complainant is given alternative options; the courts of the domicile of the trademark owner, the place where the act of infringement took place or the place of residence of the perpetrator have jurisdiction.

• Mandatory Mediation as a Procedural Condition in Turkey

Under Article 5/A of the Turkish Commercial Code, matters such as the cessation and stopping of the infringement, abandonment of a trade name and requests for interim injunctions are not subject to mandatory mediation as a procedural condition; in commercial cases seeking payment of a sum of money by way of debt or compensation, an application to a mediator before the case is filed is a mandatory procedural condition. Skipping the mandatory mediation stage in pecuniary and non-pecuniary damages cases brought for trademark infringement results in the case being dismissed on procedural grounds before the Turkish courts.

• The Importance of the Determination of Evidence in Counterfeit and Replica Product Cases in Turkey

In proceedings before the Turkish courts, the originality of the counterfeit product and the extent of the infringement are mostly established by the technical reports of expert panels appointed by the court. Expert reports form the basic ground both in determining the criminal liability of the perpetrator and in calculating the amount of damages in the civil cases to be filed.

Where there are risks such as the rapid disposal of counterfeit goods, the running down of stocks or the destruction of digital evidence, it is possible to request a Determination of Evidence under IPL Art. 150 before the case is filed. In this way a raid, seizure or on-site inspection is carried out through the court and the existence of the infringement is entered in the register and in a report.

IS THE OFFENCE OF SELLING FAKE AND COUNTERFEIT PRODUCTS SUBJECT TO CRIMINAL SETTLEMENT IN TURKEY?

One of the points most often confused in practice is whether the offences of selling fake and counterfeit products under IPL Art. 30 are subject to criminal settlement (Code of Criminal Procedure Art. 253) in terms of criminal procedure law. The offence of trademark infringement regulated in the Industrial Property Law is not included in the settlement catalogue of the Code of Criminal Procedure; the file is therefore not sent to the Settlement Office ex officio by the investigating or the prosecuting authorities. In the same way, processes relating to criminal proceedings cannot be assessed within the scope of mandatory mediation either.

However, because the offence is among the complaint-based offences, the parties are given a special opportunity to resolve the dispute outside the proceedings. During the investigation and the prosecution stages, through a Settlement and Release Protocol concluded between the trademark owner and the party committing the counterfeit product infringement, criminal sanctions can be avoided.

In practice, a significant proportion of counterfeit product cases in Turkey end with settlement protocols signed by the parties coming together privately and the withdrawal petitions submitted afterwards, even though the settlement procedure is not applied by law. In complaint-based offences, the withdrawal of the complaint by the complainant (the trademark owner) is a conclusive legal ground that terminates the criminal investigation and the public case.

Where the parties settle, the legal process to be followed operates as follows:

1. Conclusion of a private law protocol: The trademark owner and the infringing party prepare a Settlement Protocol covering matters such as payment of the amount of damages, destruction of the counterfeit goods, disclosure of the supply channels and the setting of a penalty clause for non-repetition of the infringement.

2. Declaration of withdrawal of the complaint: Once the terms of the protocol have been fulfilled, the trademark holder notifies the judicial authorities (the Chief Public Prosecutor’s Office or the Criminal Court) by a petition that the complaint is withdrawn.

3. The decision stage:

   • If the withdrawal of the complaint takes place at the investigation stage, the Chief Public Prosecutor’s Office issues a Decision of Non-Prosecution (KYOK).

   • If the withdrawal of the complaint takes place at the prosecution (trial) stage and before the judgment has become final, the court decides on the Dismissal of the Public Case under TPC Art. 73/4 and Code of Criminal Procedure Art. 223/8.

However, since a declaration of withdrawal of the complaint may as a rule produce no effect unless it is accepted by the suspect or the defendant (TPC Art. 73/6), and since a withdrawal cannot be reversed unilaterally, it is of great importance that the settlement protocol be drafted with care, taking into account the parameters of both criminal law and the law of obligations in Turkey.

WHICH SANCTIONS ARE APPLIED TO A PERSON SELLING FAKE PRODUCTS IN TURKEY?

Trade in counterfeit goods is not limited to the offence of trademark infringement (IPL Art. 30); depending on the way the product is presented, the intent of the seller and the deception of the buyer, it may also breach the general offence types regulated in the Turkish Penal Code.

• The Relationship Between Selling Counterfeit Products and the Offence of Fraud in Turkey (TPC Arts. 157-158)

Where a counterfeit product is sold to the buyer with deceptive conduct suggesting that it is original, the offence of fraud arises, either as the Basic Fraud regulated in TPC Art. 157 or as the Aggravated Fraud regulated in TPC Art. 158.

1. Criminal sanction: Basic fraud carries imprisonment from one year to five years, whereas where the act is committed through information systems (e-commerce sites, social media) or within the activity of a commercial enterprise, imprisonment from three years to ten years applies.
2. Legal distinction and the mental element: Under Turkish law, the basic legal distinction between IPL Art. 30 and TPC Arts. 157/158 lies in the point of whether the will of the buyer has been vitiated. Where the product is openly sold with the descriptions “replica”, “identical equivalent” or “knock-off”, the buyer knows that the product is counterfeit, so the elements of deception and misleading conduct required for fraud do not arise; the act remains only at the level of trademark infringement under IPL Art. 30. However, if the counterfeit product has been sold at the price of the original and with an impression of authenticity created, the perpetrator faces the risk of double criminal liability under both IPL Art. 30 and TPC Art. 158, within the framework of the rules on notional and material concurrence of offences.

• Do Legal Entities (Companies) Bear Civil and Criminal Liability for Selling Counterfeit Products in Turkey?

Under Turkish criminal law, as a matter of principle, legal entities have no direct criminal capacity (criminal liability). The perpetrator of the offence is always the natural person who manages and directs the company or who commits the act. However, where the trade in counterfeit goods is carried on within an incorporated company in Turkey or in the course of company’s activities, legal entities may be subject to Special Security Measures under Article 60 of the TPC.

The principal security measures that may be ordered against companies are as follows:

1. Cancellation of the operating licence: Cancellation of the licence or operating permit that made the commission of the offence possible.
2. Confiscation of goods and gains: Seizure of the counterfeit products, of the tools and equipment used in their production and of the unlawful gain obtained from this trade (the proceeds of crime).

One of the typical scenarios frequently met in practice in Turkey is commercial companies placing on the market, as original, products they have sourced outside authorised distributor or official importer channels (from the grey market).

The heavy legal and financial sanctions arising from the trade in fake goods do not cover only the bad-faith actors who commit this act intentionally. Honest businesses that are under the duty to act as a prudent merchant (TCC Art. 18/2) and that unknowingly buy or distribute counterfeit products in the supply chain may also face serious criminal and civil liability risks under Turkish law.

In such cases, company officers have a duty, under the obligation to act as a prudent merchant (TCC Art. 18/2), to investigate the source of the products and to show reasonable care. Where it is proved that the product was known to be fake, or that this could objectively have been known, the merchant’s claim to have acted “in good faith” is not accepted and both criminal sanctions and the security measures specific to legal entities are applied before the Turkish courts.

In order for businesses not to face counterfeit product risk, or to be able to prove that they acted prudently in the event of a possible infringement, they need to operate preventive law mechanisms:

1. Supplier due diligence: When selecting a supplier, the firms’ authorised dealership/distributorship certificates, invoice chain and certificates of origin for the products must be examined with care.
2. Contractual warranty and recourse clauses: To the commercial sale and purchase contracts concluded with the supplier, express warranty undertakings as to the originality of the products, and heavy penalty clauses providing that all criminal and civil damages and attorney fees arising in the event of infringement will be recovered from the supplier, should be added.
3. Financial and tax dimension: Since the trade in counterfeit goods in Turkey is mostly carried on through unregistered financial channels, sanctions may arise because of the use of false or misleading documents (fake invoices), such as tax evasion and irregularity penalties under the Tax Procedure Law (TPL), administrative fines and VAT penalties. In that case, the tax debt liability arising in companies makes it necessary for the process to be conducted with tax law expertise in Turkey.

• What Are the Administrative Supervision Mechanisms for the Counterfeit Product Trade in Turkey?

The fight against counterfeit and fake products does not consist only of the judicial (criminal and civil) processes left to the initiative of the trademark owner. The supervision and sanction regimes operated by the administrative authorities in Turkey in order to protect public order, public health and the balance of the market are also a complementary element of this legal framework.

a) Market Surveillance and Municipal Police Inspections in Turkey

Administrative supervision processes are carried out at two levels, within the powers conferred on central and local administrative units by Turkish legislation:

• Market surveillance and inspection by the Ministry of Trade: Inspectors and auditors of the Ministry of Trade may carry out inspections in physical and digital channels under the Product Safety and Technical Regulations Law and the related legislation. Products that carry a product safety risk or that raise a suspicion of intellectual property infringement may be seized by administrative decision, recall decisions may be taken and heavy administrative fines may be imposed.
• Powers of municipal police units: At local level, municipal police apply administrative sanctions and seizure measures against counterfeit product sales carried out in particular through street vending, unregistered stalls or unlicensed businesses, within the framework of Municipal Law No. 5393 and the Municipal Police Regulation.

b) The Legal Nature of Administrative Reports in Criminal Investigations and Cases in Turkey

Administrative supervision mechanisms operate independently of the criminal complaint of the trademark owner or of the civil cases it may file. However, the official records and determination reports drawn up by the competent public officials in this process go beyond the administrative law dimension and have a direct effect on the judicial courts.

The reports drawn up during administrative inspection, the samples taken into custody and the photographic findings have the quality of strong discretionary evidence within the meaning of Code of Civil Procedure Art. 204 and Code of Criminal Procedure Art. 217 in the criminal investigations under IPL Art. 30 and in the damages cases before the Civil IP Courts that are opened afterwards.

For this reason, it is of great importance that the matters and the defences recorded in the report at the administrative inspection stage be managed with a strategic legal approach that takes into account the judicial proceedings that may arise in future before the Turkish courts.

• What Civil and Damages Cases Can a Trademark Owner File Against a Fake and Replica Product Seller in Turkey?

The Industrial Property Law offers the holder whose trademark right has been infringed a broad area of civil protection, entirely independent of the criminal proceedings in Turkey. The criminal case and the civil cases can generally be conducted at the same time, and the absence of a criminal case is no obstacle to filing a civil case.

a) Determination and Prevention of the Infringement and Destruction Requests in Turkey (IPL Art. 29)

Against the act of infringement, the trademark proprietor may bring the following performance and declaratory actions before the Turkish courts within the framework of the provisions of IPL Art. 29:

• Determination, cessation and prevention of the infringement: Determination of the existence of the unlawful act, stopping of the continuing infringement and prevention of possible acts of infringement in Turkey.
• Seizure and confiscation: Seizure of the counterfeit products, of their packaging and of the tools, equipment and machinery used in their production.
• Removal of the trademark and destruction: Scraping or removal of the trademarks on the products, or destruction of the products if this is unavoidable in order to prevent the infringement.

b) Claims for Pecuniary and Non-Pecuniary Damages in Turkey (IPL Art. 150)

A person who infringes an industrial property right in Turkey is liable to provide compensation for every kind of loss suffered by the rights holder because of that infringement. The legal basis of damages claims is shaped by IPL Arts. 150 and 151:

1. Pecuniary damages: This covers the actual loss directly suffered by the rights holder because of the act of infringement.
2. Reputational damages (IPL Art. 150/2): Where the standing, image and reputation of the trademark are harmed as a result of the counterfeit product being produced and put on the market in a poor-quality, bad or improper manner, a separate claim for damages may be brought under Turkish law for that loss of reputation.
3. Claim for lost profit (IPL Art. 151): Where a trademark is infringed, the profit of which the rights holder has been deprived (the lost profit) is determined under IPL Art. 151, at the claimant’s choice, according to one of the following three calculation methods:

• Probable income method: The probable income the rights holder could have obtained in Turkey by using the trademark had the trademark right not been infringed.
• Net profit of the infringer method: The net profit obtained by the infringing party as a result of selling counterfeit goods and using the trademark unlawfully.
• Hypothetical licence fee method: The comparable licence fee the infringer would have had to pay had it used the trademark lawfully under a licence agreement.

Through an expert examination, the court applies the method that fits the specific case best under Turkish law, taking into account the evidence in the file, the commercial value of the trademark and the extent of the infringement.

c) What Are the Interim Legal Protection Mechanisms for Fake Product Sales in Turkey?

In order to establish precisely the amount of the loss and the extent of the infringement before a damages case is filed, a Determination of Evidence under IPL Art. 150/3 may be requested. In this way the commercial books, stocks and sales records of the infringer are taken under examination by the court. In addition, in order to prevent the infringement from continuing during the proceedings, aimed at stopping the sale and the distribution of counterfeit goods, Interim Injunction orders may be requested.

Where the compensation awarded by the court is not paid voluntarily, enforcement proceedings based on a judgment are conducted. In practice, since persons or shell companies trading in counterfeit goods carry a high risk of concealing their assets, it is critical that precautionary attachment and asset investigations be carried out with care from the very beginning of the process in Turkey.

d) Seizure of Counterfeit and Fake Goods at Customs in Turkey

A significant part of counterfeit and fake products enters Turkey through imports, or is carried across Turkish territory to third countries under the transit regime. In the face of this, the customs administrations in Turkey form the first line of defence in blocking the trade in counterfeit goods before it reaches the domestic market.

Under Article 57 of Customs Law No. 4458 and the provisions of the Customs Regulation, trademark holders may apply to the Ministry of Trade for a Customs Application for the Protection of Intellectual and Industrial Property Rights in order to have goods infringing their intellectual and industrial property rights stopped in the customs territory.

These applications are made with an electronic signature through the Ministry of Trade’s digital E-Applications portal, and the register details of the registered trademark and the distinguishing criteria that make it easier to identify counterfeit products are entered into the system. A protection application is as a rule accepted for a period of 1 year and is renewed each year.

Where the customs administration establishes, of its own motion or upon an application, that goods placed under a customs-approved treatment or use bear counterfeit or fake signs, it stops (suspends) the customs procedures for the goods. After the procedures are stopped, the legal process moves forward within the following preclusive periods in Turkey:

1. Notification and information: The customs administration immediately notifies the rights holder (or its representative) and the obligor/importer of the suspension decision and of the sample and photograph details taken from the goods.

2. Right to inspect the goods: The rights holder is given the opportunity to inspect the goods suspected of being counterfeit on site in the customs supervision area in Turkey, or to take samples.

3. Preclusive period for filing a case: From the date of notification;

   • For perishable goods: 3 working days,

   • For all other goods: Within 10 working days,

   on the merits before the judicial courts (the Civil/Criminal IP Court) a case must be filed, or an interim injunction/seizure order must be obtained from the court and submitted to the customs administration. Under Turkish law, where there are justified grounds, the customs administration may extend the 10-working-day period by a maximum of 10 more working days.

4. Consequence of missing the period: If an injunction order obtained from the competent court is not submitted to customs within these short periods laid down in the law, the customs administration continues the customs procedures by lifting the suspension decision on the goods as required by the legislation.

Statistical data on border controls in Turkey show the vital role of intervention at the customs stage. A significant proportion of the counterfeit product seizures carried out at the border take place at the import (21%), transit transport (19%) and bonded warehouse/storage (26%) stages.

Turkey’s geographical position and its existing Customs Union relationship with the European Union make the country both a target market and a transit corridor. This legal and geographical situation threatens the intellectual property rights not only of foreign brands but also of Turkish brands exporting to international markets. For this reason, it is an indispensable part of an intellectual property strategy for Turkish businesses expanding abroad to establish parallel customs protection applications before the customs administrations of their target export countries as well, and not only in the domestic market.

WHAT ARE THE CONSEQUENCES OF TRADING IN FAKE AND REPLICA PRODUCTS THROUGH DIGITAL CHANNELS IN TURKEY?

Under Turkish intellectual property law, the civil and criminal consequences of selling fake and replica products do not change according to the medium in which the act is committed. Selling counterfeit goods in a physical shop or at a neighbourhood market and carrying out the same act on a personal website, a social media account or an e-commerce marketplace are subject to the same criminal sanctions under IPL Art. 30. The fact that the sales channel is digital does not remove or lighten the personal criminal or civil liability of the seller in Turkey.

• Liability of E-Commerce Marketplaces (Intermediary Service Providers) in Turkey

The legal position of online marketplace platforms (Trendyol, Hepsiburada, Amazon and the like) in the face of counterfeit product listings is regulated within the framework of Law No. 6563 on the Regulation of Electronic Commerce.

As a general rule, intermediary service providers are not obliged to monitor the content offered on their platforms. However, upon a duly filed application by the trademark proprietor based on information and documents concerning the infringement of an intellectual and industrial property right (the “notice and take-down” mechanism), it is a legal obligation in Turkey for the platform to remove the infringing product immediately and to notify the parties.

In the processes conducted through notice and take-down applications and consumer complaint portals, the processing of the identity and contact details of the complainant and the seller must comply with personal data protection legislation.

• The Constitutional Court’s 2026 E-Commerce Annulment Decision in Turkey and Joint Liability

A development amounting to a turning point has occurred in e-commerce law. By the decision it gave in 2026, the Constitutional Court annulled the provision of Law No. 6563 exempting intermediary service providers in an active position from joint liability for defective goods and for infringement of rights.

The high court based its decision on the ground that the exemption disturbed the balance of interests between the consumer and the rights holder on the one hand and the intermediary service provider on the other in a disproportionate manner. With the entry into force of this decision, a new legal era has begun in Turkey in which marketplaces that turn a blind eye to counterfeit product sales and take an active role by earning commission or advertising revenue may also be held jointly liable together with the seller.

• Social Media Infringements and the Position of Content Creators (Influencers) in Turkey

In counterfeit product sales carried out through social media platforms (Facebook, Instagram, TikTok and the like), the civil and criminal position of the content creators (influencers) who promote the product and direct users to the sale must be assessed separately.

Where a content creator knows, or is in a position to know in the ordinary course of events, that the product being promoted is counterfeit or fake, and nevertheless obtains a benefit by presenting it as “original”, the position under Turkish law is as follows:

1. Criminal aspect: Depending on the features of the specific case, the provisions on complicity in the offence of fraud under TPC Arts. 157-158, or on aiding and abetting under IPL Art. 30, may be applied.
2. Administrative aspect: The Advertisement Board within the Ministry of Trade may impose suspension orders and high administrative fines on the persons concerned because of deceptive and misleading advertising.
3. Civil aspect: Under the Turkish Commercial Code, a claim for damages may arise under the provisions on unfair competition.

DOES A CONSUMER WHO BUYS A FAKE PRODUCT KNOWINGLY OR UNKNOWINGLY BEAR LEGAL LIABILITY IN TURKEY?

Although sellers, manufacturers and suppliers are at the focus of the criminal and administrative sanctions in the fight against the trade in counterfeit goods, the legal status of the end consumers who buy these products without knowing, or while acting prudently, also calls for a separate assessment under Turkish law.

• Does a Consumer Buying a Counterfeit Product Bear Criminal Liability in Turkey? (Analysis of IPL Art. 30/1)

The clear wording of Article 30 of the Industrial Property Law No. 6769 requires, for the offence to arise in Turkey, that the product be bought, possessed, transported or stored “for commercial purposes”.

1. Personal use and good faith: A consumer who buys a product for personal needs, without any commercial purpose and without knowing that the trademark is counterfeit, as a rule bears no criminal liability under IPL Art. 30.
2. Intent and commercial purpose: Where the consumer buys knowing that the product is counterfeit and with the aim of obtaining commercial gain (for example, selling it on social media or to the people around them), the limits of personal use are exceeded and the criminal sanctions under IPL Art. 30 come into play.

• The Consumer’s Optional Rights Under the Consumer Protection Law in Turkey

Where it emerges afterwards that the product bought is counterfeit or fake, this gives rise to the legal classification of defective goods under Consumer Protection Law No. 6502. Since a counterfeit product is regarded as performance contrary to the contract and legally defective, the consumer may exercise the following optional rights against the seller:

1. Rescission of the contract: Requesting the refund of the price paid by stating readiness to return the item sold.
2. Reduction of the price: Requesting a reduction in the price in proportion to the difference between the defect-free value and the defective value of the goods.
3. Free repair or replacement: Requesting that the product be replaced with a defect-free equivalent, where this is possible.

In purchases made through e-commerce platforms, the consumer may, in addition to these optional rights, exercise the 14-day right of withdrawal without cause under the Distance Contracts Regulation in Turkey. Consumers may report the counterfeit product sellers they encounter through the Ministry of Trade’s ALO 175 Consumer Advice Line, the Provincial Directorates of Trade and the e-Government Consumer Complaint Portal.

THE IMPORTANCE OF WORKING WITH A SPECIALIST TRADEMARK ATTORNEY IN TRADEMARK INFRINGEMENT PROCEEDINGS IN TURKEY

Infringement of trademark rights and counterfeit product disputes bring together the extremely complex and intersecting rules of criminal law, industrial property law, the law of obligations and procedural law. Whether you are a business or an individual facing an allegation of counterfeit products, or a rights holder trying to protect a registered trademark, conducting the process from the outset with a specialist trademark attorney prevents irreparable losses of rights under Turkish law.

1. Procedural Law Risk and the Management of Strict Preclusive Periods in Turkey

Industrial property legislation in Turkey is subject to extremely strict time regimes. A delay of even one day in the 6-month preclusive period laid down for a criminal complaint, in the 10-working-day period for filing a case in customs seizure decisions, or in the procedural steps at the mediation or interim injunction stages leads to the case of even the party in the right being dismissed on procedural grounds. A specialist trademark attorney ensures that these critical calendar processes are managed flawlessly.

2. Designing Settlement Protocol and Complaint Withdrawal Strategies in Turkey

A Settlement and Release Protocol to be concluded in order to escape criminal sanction must not only remove the penalty; it must also secure future damages risks, destruction processes and possible repeat infringements. A protocol that is not properly drafted, or that is vague or incomplete, may pave the way for the other side to take action again with claims for compensation after being released from the criminal file. Support from an attorney forms, in this context, a complete legal shield under Turkish law.

3. Determination of Evidence, Interim Injunctions and Holistic Risk Management in Turkey

In infringements occurring both in physical markets and on e-commerce platforms, the lawful collection of the evidence through the court or by electronic determination methods decides the fate of the case. On the other hand, for prudent businesses facing an unfair accusation of counterfeit products, protecting commercial reputation, objecting in time to search and seizure decisions and activating recourse mechanisms is possible only with legal representation specialised in this field before the Turkish courts.