WHAT IS TRADEMARK?
A trademark emerges as a critical element reflecting the essence of a business and essential for its presence in the market. It serves to distinguish a business’s products or services from others and to instill confidence in consumers. However, a trademark is more than just a commercial name; it also carries an identity and a narrative. Trademark registration in Turkey, on the other hand, is a process ensuring legal protection for the brand.
A brand represents the quality, reliability, and uniqueness of a product or service offered to consumers. For a business, a brand reflects its character and values. Consumers establish a connection with the brand, expressed through loyalty and repeat purchase behavior.
The creation and management of a brand are processes that require careful planning and continuous development. A brand should be supported not only by a logo or slogan but also by product quality, customer service, marketing communication, and business practices.
In today’s competitive markets, a trademark registration benefits provide a significant advantage for businesses in terms of sustainability and success. A strong brand leaves a lasting impression on consumers’ minds and sets it apart from competitors.
In conclusion, answer for what is trademark is a valuable asset representing the essence and identity of a business. When managed correctly, a trademark contributes to the growth and success of a business by establishing a strong connection with consumers.
HOW TO OBTAIN A TRADEMARK RIGHT?
A trademark right is a valuable asset created by a business or individual; however, it needs to be registered for legal protection. The answer to how to obtain a trademark right is through trademark registration in Turkey. Registering trademark rights provides legal protection and usage rights to the owner.
Trademark registration is done by applying to the trademark office of a specific country or region. The trademark application specifies the field and classes in which the trademark will be used, and usually includes the identity information of the applicant. The trademark office examines the trademark application, evaluating the uniqueness of the trademark, its registrability, and other legal requirements.
When a trademark right is registered, the owner is legally protected regarding the use of the trademark. In other words, the trademark owner has the right to protect and use the trademark against unauthorized users. Additionally, with trademark registration, the owner can use and market the trademark more securely for commercial purposes.
Failure to register a trademark can create issues in terms of protection under the Law on Intellectual and Artistic Works. Protecting and preventing unauthorized use of an unregistered trademark can be more challenging and legal processes can become more complex. Therefore, trademark registration is crucial for the owner to protect and assert their rights.
In conclusion, the first and most important step in obtaining a trademark right is trademark registration. Obtaining and protecting trademark rights is extremely important for businesses. Trademark registration in Turkey ensures legal protection of the trademark and grants the owner the authority to use the trademark securely. Therefore, it is essential to register trademark rights when creating a trademark and starting business activities.
WHAT IS TRADEMARK REGISTRATION IN TURKEY?
Trademark registration is the process by which a business or individual legally protects their commercial brand. This process aims to prevent confusion among consumers by registering the trademark, thereby preventing others from using the same or similar mark.
For businesses, trademark registration in Turkey ensures the protection of the brand and prevents the infringement of intellectual property rights in Turkey. Trademark registration is essential to prevent unauthorized use of the mark by others and to preserve the uniqueness of the brand.
Trademark registration provides legal protection for the trademark symbol (such as a logo). These symbols cannot be used without permission from the trademark owner. It is necessary for businesses of all scales and offers numerous advantages.
In summary, trademark registration in Turkey is crucial for businesses to protect and ensure the uniqueness of their brand. Registered trademarks help businesses gain a competitive advantage and establish a trustworthy brand image.
WHICH TRADEMARKS CAN NOT BE REGISTERED IN TURKEY?
For a trademark to be registered, it must first be distinctive, meaning it should clearly distinguish its products or services from others. However, there are some situations where registration is not suitable. These situations typically include:
- Descriptive Marks: Marks that merely describe the goods or services offered rather than indicating the source of those goods or services. For example, a brand name like “Delicious Pies” merely describes the characteristics of the pies rather than distinguishing them from others.
- Generic Terms: Marks that are the common name of a product or service. These marks typically describe all products or services within a category. For instance, the word “Beverage” is a generic term used to describe a type of food and therefore cannot be registered.
- Misleading or Confusing Marks: Marks that have a high likelihood of misleading or confusing consumers about the nature or characteristics of the goods or services offered. These marks can lead to misunderstandings or false expectations. Phrases like “Amazing Product” or “Superb Service” fall under this category.
- Inappropriate Marks: Marks that contain aggression or are not in line with general morality. These marks may go against accepted societal values and are generally not eligible for registration.
These situations cover trademarks that are not suitable for registration. Before filing a trademark application, it is essential to carefully assess whether the mark meets these registration requirements in Turkey. This way, unnecessary time and trademark registration costs can be avoided, and the brand can be built on a more solid foundation.
WHAT ARE THE TRADEMARK REGISTRATION BENEFITS?
Protecting the rights of a brand is crucial from the development stage of a business model or product onwards. This protection is ensured through trademark registration in Turkey, which is an industrial right. Trademark registration is essential to take precautions against potential brand infringements in the future and to protect the brand rights. There are trademark registration benefits;
- Exclusive Use Right: The individual or organization that registers the trademark can exclusively use the brand. Thus, the brand remains under the ownership and control of its owner.
- Ownership of Rights: With trademark registration in Turkey, all rights of the brand belong to the registered party. This gives the brand owner the right to use the brand as they wish and use trademark registration benefits.
- Authority to Grant Licenses: The party that registers the trademark gains the authority to license the brand. This allows the brand to be licensed to other businesses or transferred.
- Prestige and Reliability: Trademark registration in Turkey adds prestige to the business. A registered trademark creates a sense of trust and quality perception among customers.
- Acquisition of Domain Name Extensions: Upon registration, it becomes possible to acquire prestigious domain name extensions such as com.tr. This strengthens the brand’s online presence.
- Prevention of Copying: One of the trademark registration benefist is registration prevents the brand from being copied or similar brands from being used. This preserves the uniqueness of the brand and helps customers establish a connection with it.
- Facilitation of Obtaining Quality Certificates: Trademark registration facilitates the documentation of the business’s quality standards. Some quality certificates provide advantages to businesses that have registered trademarks.
In conclusion, trademark registration is an important aspect for businesses and is necessary for the long-term protection and strengthening of the brand. Therefore, it is important to consider trademark registration benefits when creating a brand and starting business activities.
PROTECTION OF TRADEMARK IN TURKEY
Law No. 6769 on Industrial Property introduces specific regulations to ensure protection of trademark in Turkey. Protection of trademark begins with the trademark being found compliant with the relevant legislation by the Turkish Patent and Trademark Office and registered in the Turkish trademark registry. During this process, the trademark owner begins to exercise their trademark rights from the date of trademark application for registration in the Turkish trademark registry and has the right to seek legal remedies in case of trademark infringement.
The registered trademark owner is granted the exclusive right to use their trademark in the goods or services class for which it is registered. This prevents unauthorized use of the trademark by competitors and provides the trademark owner with a competitive advantage. Additionally, in case of trademark infringement in Turkey, the trademark owner may seek legal remedies.
Law No. 6769 explicitly defines acts considered as infringement of trademark rights in Turkey. Actions such as the use of the trademark without the owner’s consent or the imitation of the trademark using a similar one are considered as infringement of trademark rights. In case of trademark infringement in Turkey, the trademark owner can apply to the court to determine, stop, and compensate for material/ moral damages resulting from the infringement.
However, to use trademark registration benefits, the trademark must be registered in the Turkish trademark registry. For trademarks not registered in the Turkish trademark registry, trademark protection under the Industrial Property Law cannot be utilized. In this case, the provisions of the Turkish Commercial Code regarding unfair competition may be applied. Unfair competition provisions aim to protect fair commercial relations and prevent persons without trademark rights from infringing upon trademark rights.
The applicable law in case of trademark infringement in Turkey and the burden of proof depend on whether the trademark is registered in the Turkish trademark registry. A trademark registered in the Turkish trademark registry provides protection to the rights holder for 10 years and can be renewed after this period.
HOW TO REGISTER A TRADEMARK IN TURKEY?
Trademark registration in Turkey involves following specific processes outlined in the legislation. Here’s how to register a trademark in Turkey:
- Brand Analysis and Research: The first step in how to register a trademark in Turkey is analysis and research. First, it’s important to check whether the brand rights have been previously acquired. This step allows for selecting a unique brand by researching existing brand rights. Additionally, it’s essential to evaluate whether the brand aligns with the product or service and is compatible with the target audience.
- Application Process: After conducting a brand analysis, a trademark application is submitted to the Turkish Patent and Trademark Office (TÜRKPATENT). The application process can be done online. TÜRKPATENT examines the application, and if deemed appropriate, publishes it in the official bulletin.
- Objection Process: Any objections to the published trademark application in the official bulletin are checked. If there are no objections, the trademark registration application process is completed within approximately 2 months.
- Registration Fee: Upon payment of the determined registration fee, the company can obtain the registration certificate. In addition to the registration fee, there may be additional fee requests in some cases.
During the trademark registration process, a registration decision is made by TÜRKPATENT based on the characteristics and type of the brand. Seeking assistance from a trademark lawyer for detailed information and support during the trademark registration process ensures more effective management of the process.
Trademark Registration Costs in Turkey
| Account Codes | Service Type | 2024 Transaction Fees |
| 2.01.01 | Single-Class Trademark Application Fee | 1498.24 |
| 2.01.02 | Additional Class Fee for Trademark Application (2nd class) | 1498.24 |
| 2.01.28 | Additional Class Fee for Trademark Application (for each class from 3rd onwards) | 1610.11 |
| 2.01.03 | Trademark Registration Fee | 3522.95 |
| 2.01.04 | Fee for Issuance of Trademark Registration Certificate | 1518.58 |
| 2.01.05 | Fee for Issuance of Trademark Register Certificate | 1518.58 |
| 2.01.06 | Fee for Transfer-Partial Transfer Registration | 3069.82 |
| 2.01.07 | Fee for Structural Changes such as Merger, Division, or Contribution in Kind | 1525.42 |
| 2.01.08 | Fee for Registration of Inheritance Transaction | 2592.37 |
| 2.01.09 | Fee for License Registration and Renewal | 5224.39 |
| 2.01.10 | Fee for Registration of Pledge Transaction | 3121.68 |
| 2.01.14 | Fee for Registration of Pre-emption Right | 1905.62 |
| 2.01.15 | Fee for Preparation of Classification List | 437.29 |
| 2.01.16 | Fee for Issuance of Pre-emption Right Certificate | 691.53 |
| 2.01.17 | Fee for Objection to Published Trademark Applications | 406.78 |
| 2.01.18 | Fee for Official Letter Preparation Regarding Trademark Information | 101.69 |
| 2.01.19 | Fee for Notification to WIPO of International Trademark Application under the Madrid Protocol | 1854.17 |
| 2.01.20 | Fee for Subsequent Designation and Other Requests to WIPO under the Madrid Protocol | 569.49 |
| 2.01.21 | Fee for Replacement and Transformation under the Madrid Protocol | 569.49 |
| 2.01.22 | Fee for Division of Trademark Application | 1464.41 |
| 2.01.23 | Trademark Renewal Fee | 4379.89 |
| 2.01.24 | Trademark Renewal Fee upon Expiry of Protection Period | 7156.59 |
| 2.01.25 | Fee for Partial Renewal of Trademark | 4379.89 |
| 2.01.26 | Fee for Partial Renewal of Trademark upon Expiry of Protection Period | 7156.59 |
| 2.01.27 | Fee for Examination of Recognition Request | 12345.76 |
CAN OBJECTIONS BE RAISED AGAINST TRADEMARK REGISTRATION REFUSAL?
Trademark registration applications are examined by the Turkish Patent and Trademark Office (TÜRKPATENT) for compliance with both formal requirements and absolute grounds for refusal.
Absolute grounds for refusal include elements that prevent the registration of the trademark and are automatically assessed by TÜRKPATENT. If TÜRKPATENT determines the existence of one of the absolute grounds for refusal during the examination, the trademark application is rejected. However, the trademark applicant has the right to object to the trademark registration refusal by TÜRKPATENT.
Another reason for the rejection of a trademark registration in Turkey is non-compliance with the regulations specified in the law. Absolute and relative grounds for refusal are clearly stated in Law No. 6769 on Industrial Property. While absolute grounds for refusal are automatically considered by the Trademarks Department, relative grounds for refusal are not examined ex officio by the institution.
In case of the existence of relative grounds for refusal, third parties are given a period of 2 months from the date of publication of the application to raise objections. Within this period, third parties may object to the trademark registration refusal by the Turkish Patent and Trademark Office based on the relevant reasons.
Absolute grounds for trademark registration refusal
Article 5- (1) The following signs shall not be registered as trademarks:
a) Signs that cannot be trademarks under Article 4.
b) Signs lacking any distinctive character.
c) Signs or designations that exclusively or primarily consist of terms or indications indicating the kind, quality, quantity, purpose, value, geographical origin of goods or services, or indicating the time of production of goods or provision of services, or other characteristics of goods or services used in trade.
d) Signs or designations that exclusively or primarily consist of signs or indications that are customary in the trade or commonly used to distinguish certain professions, arts, or trades.
e) Signs that exclusively consist of the shape or another characteristic that results from the nature of the goods themselves or is necessary to obtain a technical result or that gives substantial value to the goods.
f) Signs that are likely to mislead the public regarding the nature, quality, or geographical origin of the goods or services.
g) Signs that are to be refused under Article 6 ter of the Paris Convention.
ğ) Signs that do not fall within the scope of Article 6 ter of the Paris Convention but include other signs that are of public interest, historically and culturally significant, and have not been granted registration permission by competent authorities, such as coats of arms, insignia, or designations.
h) Signs containing religious values or symbols.
ı) Signs contrary to public order or morality.
i) Signs consisting of or containing registered geographical indications.
(2) If a trademark has been used before the application date and has acquired distinctive character due to such use in relation to the goods or services covered by the application, the registration of this trademark shall not be refused under paragraphs (b), (c), and (d) of the first paragraph.
(3) A trademark application shall not be refused under paragraph (c) of the first paragraph if a notarized document showing the explicit consent of the previous trademark owner to the registration of the application is submitted to the Institution. The procedures and principles regarding the consent letter shall be determined by regulation.
Relative grounds for trademark registration refusal
ARTICLE 6- (1) If there is a likelihood of confusion, including the possibility of association with a registered or previously applied-for trademark due to identity or similarity between the trademark applied for registration and a registered or previously applied-for trademark, as well as identity or similarity between the goods or services covered, the application shall be refused upon objection.
(2) If a commercial representative or agent applies for registration of the same or indistinguishably similar trademark without the consent of the trademark owner and without a justifiable reason, the application shall be refused upon objection by the trademark owner.
(3) If rights have been acquired for an unregistered trademark or another sign used in trade before the application date or, if any, the priority date, the application shall be refused upon objection by the owner of that sign.
(4) Applications for trademarks that are identical or similar to well-known trademarks within the scope of Article 6 bis of the Paris Convention for the same or similar goods or services shall be refused upon objection.
(5) If the application for the same or similar trademark, regardless of whether it is for identical, similar, or different goods or services, is likely to result in unfair benefit, damage to the reputation of the trademark, or impairment of its distinctive character due to the well-known status it has reached in Turkey, the application shall be refused upon objection by the owner of the earlier dated trademark, except in cases of legitimate reasons.
(6) If the trademark application includes another person’s name, trade name, photograph, copyright, or any other intellectual property right, the application shall be refused upon objection by the rights holder.
(7) Applications for trademarks that are identical or similar to a collective trademark or a certification mark, and cover the same or similar goods or services, made within three years from the expiry of the protection period due to non-renewal of the collective mark or certification mark, shall be refused upon objection by the previous rights holder.
(8) Applications for trademarks that are identical or similar to a registered trademark, and cover the same or similar goods or services, made within two years from the expiry of the protection period due to non-renewal of the registered trademark, shall be refused upon objection by the previous trademark owner, provided that the trademark has been used within this two-year period.
(9) Trademark applications made in bad faith shall be refused upon objection.
APPEAL PROCESS FOR TRADEMARK REGISTRATION REFUSAL IN TURKEY
According to Article 20 of the Industrial Property Law, an appeal can be lodged against the trademark registration refusal decision issued by the Turkish Patent and Trademark Office (TPTO). This appeal is reviewed by the Re-Examination and Evaluation Board. The Directorate General of Re-Examination and Evaluation, which is responsible for industrial property rights and traditional product names, evaluates the objections directly under the supervision of the President of the Institution.
The Directorate General of Re-Examination and Evaluation reviews objections concerning trademarks, patents, utility models, designs, geographical indications, and traditional product names. The decisions of the Board are final and cannot be appealed again within the Institution. However, against the final decisions of the Board, an appeal for trademark registration refusal can be filed in the Ankara Intellectual and Industrial Property Rights Court within 2 months from the notification of the decision.
An appeal against trademark registration refusal must be made within 2 months from the date of notification of the rejection decision. The objection petition must be submitted to the Turkish Patent and Trademark Office with reasons and evidence. The objection can be made through trademark attorneys registered with the Turkish Patent and Trademark Office, and no power of attorney is required for this purpose.
The decision of the Board on the objection is considered the final decision of the Turkish Patent and Trademark Office. If the Board partially or fully rejects the appeal against trademark registration refusal, within two months from the notification of the decision, an annulment lawsuit can be filed in court. This lawsuit must be filed in the Ankara Intellectual and Industrial Property Rights Court, which is a specialized court in intellectual and industrial property matters.
The Ankara Intellectual and Industrial Property Rights Court handles and adjudicates matters related to industrial property rights such as trademark registration in Turkey. The jurisdiction of the court in this area is definitive, and appeals against the final decisions of the Turkish Patent and Trademark Office are heard in this court. This process provides trademark applicants with a final legal recourse against the decision of the Turkish Patent and Trademark Office, which is concluded by the court. Appeals can be made to higher courts according to general provisions against court decisions.
INTERNATIONAL TRADEMARK REGISTRATION PROCESS
A registered trademark provides protection only in the country where it is registered. For example, a European Union trademark (EU trademark) is valid in all member countries of the European Union. However, since Turkey is not a member of the European Union, having an EU trademark does not protect the mark in Turkey.
Generally, when trademark owners want to protect their trademarks in other countries, they must file separate applications for each country. However, with the adoption of the Madrid System, this process has been facilitated. International trademark registration regulated by the Madrid Agreement and the Madrid Protocol allows a trademark to be protected in multiple countries with a single application. This process takes place at the World Intellectual Property Organization (WIPO), which maintains the records of international trademarks.
Before applying for international trademark registration, it is necessary to have a valid trademark application or a registered trademark in the relevant national trademark office. Turkey has been a party to the Madrid Protocol since January 1, 1999. This allows trademark owners to request trademark registration in Turkey for all countries party to the Madrid System with a single application filed from Turkey.
There are several options for protecting trademark rights internationally. These include making international registration applications through the Madrid System, filing national trademark applications, or filing regional trademark applications. Each option has its own advantages and disadvantages, and it is important to choose the most suitable one to ensure the protection of trademark rights.
Some methods that can be preferred to protect a trademark internationally include:
- International Trademark Registration (Madrid System): An international trademark registration application can be filed through the World Intellectual Property Organization (WIPO). The Madrid System allows for a single application to protect a trademark in multiple countries, which can be advantageous in terms of time and cost.
- National Trademark Applications: If legal protection is desired in countries outside the Madrid System, national trademark applications must be filed for each country where trademark protection is sought. This method may take more time and be costly, but it is necessary for countries outside the Madrid System.
- Regional Trademark Applications: Some regions offer regional trademark systems that allow for a single application to protect a trademark in multiple countries within the region. For example, such systems exist in regions like the European Union and the African Intellectual Property Organization.
Each country has its own laws and regulations regarding international trademark registration and protection. Therefore, it is important to comply with local laws during the international trademark registration process.
INTERNATIONAL TRADEMARK REGISTRATION PROCESS UNDER THE MADRID SYSTEM
The Madrid System is an effective method for international trademark registration and provides trademark owners with worldwide protection. Here are the steps of the international trademark registration process under the Madrid System:
- Eligibility: Trademark owners can benefit from the Madrid System if they are citizens of, reside in, or have a commercial establishment in a member country of the Madrid Protocol. Since Turkey is a member of the Madrid Protocol, international trademark registration applications for trademarks registered or applied for in the Turkish trademark registry should be filed with the Turkish Patent and Trademark Office.
- Application Process: Trademark owners file an international trademark registration application with the Turkish Patent and Trademark Office. The Office examines the application and evaluates whether the trademark meets the necessary requirements for international registration. The countries where protection for the trademark is desired must be clearly specified in the application.
- Fee Payment: Fees are paid both to the Turkish Patent and Trademark Office and to WIPO for the application. Application fees vary depending on the number of classes covered and the number of countries specified in the application.
- Formal Examination: If the Turkish Patent and Trademark Office finds the application suitable during the formal examination, it is transmitted to WIPO. WIPO conducts a formal examination of the application and, if it determines that the application is appropriate and correct, records the application in the International Register and publishes it in the WIPO Gazette.
- Notification of Protection: WIPO notifies the trademark protection request to the national offices of the member countries. After this stage, trademark protection is provided in the member countries.
The Madrid System enables trademark owners to easily and effectively register their trademarks internationally. This system plays a significant role in international trade by ensuring the protection of trademarks worldwide.
WHAT IS TRADEMARK INFRINGEMENT IN TURKEY?
Trademark infringement in Turkey refers to the unauthorized use or imitation of a trademark without the permission of the trademark owner. Infringement encompasses actions that violate the rights of the trademark owner and typically includes the following situations:
- Unauthorized Use of the Trademark: The use of a trademark by another person or organization without the permission of the trademark owner constitutes trademark infringement. This often occurs when the identical or similar trademark is used.
- Imitation of the Trademark: Imitating another party’s trademark in an identical or similar manner also leads to infringement of trademark rights. In such cases, the owner of the imitated trademark may resort to legal remedies to preserve the uniqueness of their mark.
- Use of the Imitated Trademark on Products: The sale, commercial use, or inclusion in contracts of products where a trademark has been imitated also constitutes trademark infringement in Turkey.
- Use of the Trademark Right Through Licensing: Expanding or transferring the right to use a trademark beyond the scope of a licensing agreement in a manner that contradicts the terms of the license may also constitute trademark infringement in Turkey.
Trademark infringement in Turkey provides the trademark owner with the opportunity to seek legal recourse to protect their mark and rights. This ensures the preservation of the reputation and commercial value of the trademark for the owner.
TRADEMARK VIOLATION CASES IN TURKEY AND THEIR OUTCOMES
In the event of trademark infringement in Turkey, trademark owners have the opportunity to protect their trademark rights through various legal avenues. This process typically involves resorting to the courts and may entail the imposition of liability for the infringement. Below are detailed explanations of trademark violation cases in Turkey that may be initiated in cases of trademark infringement and the associated processes:
Trademark Violation Cases in Turkey
- Interim Measures and Seizure Lawsuit: In cases of trademark infringement in Turkey, the trademark owner may request interim measures or a seizure order from the court. This request is made to immediately halt the infringement or to safeguard the assets involved in the infringement. This step allows the trademark owner to prevent the continuation of the infringement and protect their assets.
- Compensation Lawsuit: As a result of trademark infringement, the trademark owner may prefer to file a compensation lawsuit, which is one of the trademark violation cases in Turkey. The purpose of a compensation lawsuit is to remedy the damages incurred due to the infringement, both in terms of financial losses and reputational damage. Infringement
- Determination Lawsuit: The trademark owner may file an infringement determination lawsuit in court to establish that their trademark rights have been infringed upon. This lawsuit is crucial for substantiating the infringement and preventing future violations. The trademark owner must pursue this process to prove the infringement and secure protection for their trademark rights in Turkey.
- Request for Seizure of Assets Due to Trademark Infringement: This lawsuit, which is one of the trademark violation cases in Turkey, can be initiated to enforce the fulfillment of requests related to the assets owned by the infringing party. This is necessary for identifying the assets of the infringing party and safeguarding the assets belonging to the trademark owner. In addition to these trademark lawsuits, the trademark owner may also seek punitive damages as a result of trademark infringement.
Criminal Liability in Cases of Trademark Infringement in Turkey
In cases of trademark infringement, various criminal sanctions may be imposed, typically determined following a criminal investigation initiated by the Turkish Patent and Trademark Office. According to the relevant articles of the Industrial Property Law, the criminal sanctions that may be imposed in cases of trademark infringement include:
- Imprisonment: Individuals who infringe upon trademark rights may be subject to a certain term of imprisonment. This penalty applies to those involved in activities such as the production, sale, or importation of goods that violate trademark rights. The duration and severity of the imprisonment may vary depending on the nature and gravity of the trademark infringement.
- Fine: In addition to imprisonment, a fine may be imposed as another sanction. The amount determined by the court may vary depending on the circumstances and extent of the infringement. This fine may be applied to compensate for or penalize the financial aspects of the infringement.
- Security Measures: If the trademark infringement in Turkey occurs within the framework of a legal entity’s activities, security measures may be applied to the legal entity infringing upon the trademark rights. These measures’ aim are protection of the trademark in Turkey and prevent future infringements. These measures may include actions such as suspending the use of the trademark or restricting certain activities.
The criminal sanctions to be applied in cases of trademark infringement may vary depending on factors such as the nature, continuity, and impact of the infringement. However, it is important to note that these sanctions are applied with the aim of protection of trademark in Turkey and providing trademark owners with the opportunity to protect their rights. It is very important to get support from a trademark infringement attorney in cases of trademark infringement.
TYPES OF TRADEMARK INFRINGEMENT CASES IN TURKEY
In cases of trademark infringement in Turkey, which involves the unauthorized or improper use of a company’s trademark, various legal actions are available for trademark owners to protect their rights. This situation often undermines the commercial reputation of the trademark owner and leads to unfair competition. Activities that constitute trademark infringement include unauthorized use of the trademark, use of similar or confusingly similar trademarks, production and sale of counterfeit products, among others. When a trademark is infringed upon, the trademark owner can initiate the following trademark infringement cases to protect their rights through legal means.
Trademark Infringement Determination Lawsuit
A determination lawsuit is a legal process used to clarify whether a legal relationship exists or not. In cases of trademark infringement, the rightful owner may request a court decision to determine whether the infringement has occurred. In situations where a trademark has been infringed upon, the trademark owner or licensee may resort to this action to establish that their rights have been infringed upon or are at risk. However, since a determination lawsuit is not an enforcement action, it is often pursued alongside enforcement actions, such as those seeking to prevent or stop infringement or to claim damages.
Preventive Lawsuit to Prevent Potential Infringement
A preventive lawsuit aims to prevent an infringement act that has not yet occurred but is likely to occur. In cases where preparations for infringement, such as securing the necessary tools for the infringement act, are being made, this type of lawsuit can be filed. This lawsuit aims to provide a swift and effective intervention to prevent potential harm and protect the trademark rights. As a result, the trademark owner or licensee can minimize the potential damages resulting from potential trademark infringement and safeguard their trademark rights.
Lawsuit to Stop Trademark Infringement
A lawsuit to stop trademark infringement is a legal process aimed at halting ongoing infringement acts and is distinct from preventive lawsuits. In this type of lawsuit, the objective is to cease the effects of an ongoing infringement act. The rightful owner whose trademark rights have been infringed upon may file this lawsuit when infringement acts are ongoing. The existence of fault on the part of the infringer or harm suffered by the plaintiff is not necessary for the filing of this lawsuit. However, in cases of fault, the victim of the infringement may also request compensation in addition to requesting the cessation of the infringement act. In this way, legal action is taken to prevent the continuation of the infringement act and mitigate potential damages.
Lawsuits for the Removal of Trademark Infringement
Acts and Compensation Lawsuits for the removal of trademark infringement acts and compensation are among the trademark lawsuits initiated in cases of trademark infringement. If the effects of a terminated infringement act persist, a lawsuit for the removal of the infringement act can be filed. For this lawsuit to be filed, there must be unlawful consequences, such as the production, display, or sale of unlawfully marked products.
Trademark infringement also constitutes an unlawful act. Therefore, a victim who suffers harm as a result of the infringement may seek compensation for various damages, such as financial losses, reputational damage, and emotional distress. These compensation claims aim to compensate for the damages caused by the infringement. Also it is important to get support from a trademark infringement attorney.
REASONS FOR FILING A TRADEMARK CANCELLATION LAWSUIT
Article 26 of the Industrial Property Law explicitly regulates certain situations that may result in the cancellation of a trademark. The decision to cancel a trademark is a nullifying and constructive decision, similar to rendering the trademark invalid. The reasons for which a trademark cancellation lawsuit may be filed include:
Cancellation of Unused Trademarks
Registered trademarks may be canceled if, within five years from the registration date, they are not seriously used in Turkey by the trademark owner or with their permission, without a justifiable reason. Additionally, if there is a continuous interruption of use for five years, the trademark may also be subject to cancellation.
Cancellation of Trademarks That Have Become Common Names
A trademark may be subject to cancellation if it has become a common name in the category of goods or services for which it is registered as a result of actions taken by the trademark owner. Furthermore, the situation of becoming a common name in the relevant category of goods or services may also arise as a consequence of the trademark owner’s failure to take necessary and sufficient measures. In such cases, the relevant trademark may be canceled.
Cancellation of Misleading Trademarks
If a trademark used by the trademark owner or with their permission misleads the public in terms of certain characteristics of the registered goods or services, it may be subject to cancellation.
Cancellation of Guarantee and Collective Trademarks
A “guarantee mark” refers to signs used by many businesses under the control of the trademark owner, guaranteeing their common features, production methods, geographical origins, and qualities. A collective mark, on the other hand, is a sign used by a group of businesses engaged in production, trade, or service provision. If the use of such trademarks consistently deviates from their technical specifications, the cancellation of these trademarks may be possible.
As of January 10, 2024, the decision of the court in a trademark cancellation lawsuit will have a future effect, whereas after this date, the decision regarding the cancellation of the trademark by the Turkish Patent and Trademark Office will be effective for the future.
However, in exceptional cases provided by the legislator, the cancellation decision may have a retroactive effect. Particularly in cases related to public order, if the trademark becomes a misleading sign, the cancellation decision resulting from a trademark cancellation lawsuit may have a retroactive effect.
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