In Türkiye trade marks are governed by Law No 6769 on Industrial Property (the “IP Law”). Copyrights are governed by Law No 5846 on Intellectual and Artistic Works (the “Copyright Law”).

Unregistered trade marks can also constitute grounds for refusal or invalidity in the event of oppositions or lawsuits. However, for a successful request, the opposing party or the invalidity applicant has to prove the active use of their unregistered trade mark in Türkiye.

Türkiye is party to the following international treaties and conventions in the field of trade marks:

• the Nice Agreement;
• the Vienna Agreement;
• the Madrid Protocol;
• the Trademark Law Treaty;
• the Paris Convention; and
• the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Türkiye is party to the following international treaties and conventions in the field of copyrights:

• the Berne Convention;
• the Rome Convention;
• the World Intellectual Property Organization (WIPO) Copyright Treaty;
• the WIPO Performances and Phonograms Treaty; and
• TRIPS.

Trade mark and copyright protection under the related Turkish laws do not impose any limitation with regard to the nationality of the right holder. Once the protection is granted, foreign trade mark and copyright holders benefit from the same level of protection and enjoy the same rights as right holders who are Turkish nationals.

In Türkiye, the IP Law provides protection to the rights relating to trade marks, geographical indications, designs, patents, utility models and traditional products. In order to register any geographical indication or industrial design, it is necessary to file separate applications from trade marks.

According to the IP Law, any signs such as words (including personal names), figures, colours, letters, numbers, sounds, motions and the shape of goods or their packaging that are capable of distinguishing the goods or services of one undertaking from those of another could be registered as a trade mark. If the application has been filed for collective or guarantee trade marks, technical specifications should be added.

There are also special protected signs, which can be evaluated under three main headings, as follows.

• Well-Known Trade Marks – signs that are protected under Article 6bis of Paris Convention are defined as such.

• WIPO Protection – signs serving a guarantee and control function that are sent to the Turkish Patent and Trademark Office (“TÜRKPATENT”) via WIPO or signs belonging to official institutions and organisations are within this scope.

• Signs under special Turkish Protection – signs protected within this context are:
1. signs related to the sovereignty of the Republic of Türkiye;
2. signs and designations accepted by the State as official control and guarantee signs;
3. signs and designations of a non-economic nature belonging to the State, local administrations and other public legal entities;
4. signs and designations belonging to professional organisations that are public institutions and cannot be registered as trade and service marks;
5. signs and designations of associations operating for the public benefit by the decision of the Council of Ministers; and
6. other signs that need to be protected for public interest reasons (such as political party emblems).

Trade mark applications that are identical or similar to the well-known marks within the context of Article 6bis of the Paris Convention shall be refused upon opposition in respect of the identical and similar goods or services.

Signs that are devoid of any distinctive character may not be registered as a trade mark in Türkiye. A trade mark that is found to be non-distinctive or descriptive may still be registered if the trade mark was used before the application date and acquired distinctiveness for the claimed goods or services. In order to acquire distinctiveness, the usage must be substantial. When determining substantial use, factors such as the duration of sign usage, advertising and marketing expenditures, market share, and the geographical area in which the trade mark was used will be taken into account.

The IP Law provides legal and criminal sanctions concerning the violation of rights arising from trade mark registration. Rights arising from trade mark registration will be granted exclusively to the trade mark proprietor. The trade mark proprietor will be entitled to claim for prevention of the following acts executed without consent:

• use of any sign identical to the trade mark on goods or services that are in the scope of the registration;
• use of any sign identical or similar to a registered trade mark and covering identical or similar goods or services with the registered trade mark, which is therefore liable to create a likelihood of confusion on the part of the public (including the likelihood of association between the sign and the trade mark); and
• use of any sign identical or similar to the registered trade mark – irrespective of being for identical, similar or different goods or services – where the use of that sign without due cause takes unfair advantage of (or is detrimental to) the distinctive character or the repute of the trade mark due to the reputation it has in Türkiye.

However, the trade mark proprietor may not prevent the honest use of their trade mark by a third party in the course of trade in the following forms:

• natural persons indicating their own name or address;
• making explanations concerning the kind, quality, quantity, intended purpose, value, geographical origin or the time of production of goods or of rendering of the service (or other characteristics of the goods or services); and
• situations where it is necessary to indicate the intended purpose of a product or service – in particular, as accessories or spare parts or equivalent products.

To establish use of a trade mark, the use should be genuine use and the defendant must use the sign as a trade mark. Purely descriptive use cannot establish the genuine use of a sign in Türkiye.

There is no specific requirement for using symbols, such as ® or ™. Therefore, using symbols or phrases such as ™ is optional and not mandatory.

A trade mark that is also eligible for copyright protection can be protected as a copyright too. Besides, an application for registration of a trade mark will be refused upon the opposition of the right holder if it consists of a person’s name, trade name, photography, copyright or any other IP right of another.

In Türkiye, the copyright regime identifies types of works into four main categories – namely, scientific and literary works, musical works, works of fine art, and cinematographic works. These categories are defined according to the numerus clausus principle.

These main categories include various types of works eligible for copyright protection – for example, musical compositions, choreographic works, paintings, sculptures, architectural designs. Additionally, software and databases are also protected as literary works.

Industrial designs are primarily protected under the IP Law. It is stated in the IP Law that “the design protection provided under this law shall not prejudice the protection provided by the Law on Intellectual and Artistic Works, if it meets the conditions required by the Law on Intellectual and Artistic Works No 5846”.

Under the Copyright Law, a work is eligible for copyright protection if it cumulatively fulfils the following criteria:

• the work must bear the characteristics of its author (ie, originality); 
• the work must be fixed in a tangible medium; and
• the work must fall within one of the specified categories of works outlined in the Copyright Law.

Authorship Definition

The individual who created a work is recognised as its author. Works created by non-human entities such as AI or animals would not qualify for copyright protection under Turkish law.

Authorship for Works Made for Hire

In these scenarios, a “contract of work” under the Turkish Law of Obligations is presumed. Generally, the economic rights or usage rights transfer to the commissioning party, whereas moral rights stay with the author.

Employee Work

Rights to works created by employees during their duties typically transfer to the employer, unless the contract or nature of the work suggests otherwise. Moral rights remain with the employee.

Joint Authorship

When multiple authors are involved, the division of the work is a key consideration. If the work is dividable, each author owns their part and can independently manage it. When the work forms an inseparable whole, it is owned collectively by all authors.

Anonymous and Pseudonymous Works

If the work’s owner is unknown, the publisher exercises the author’s rights; if the publisher is unknown, the copier of the work does. For works presented publicly, where the author is unknown, rights are exercised by the performer. Pseudonymous works are treated similarly to those with known authors.

According to the Copyright Law, authors receive exclusive rights over their creations. This encompasses economic and moral rights.

Economic Rights

These rights enable authors to control how their work is commercially used, including:

• reproduction;
• distribution;
• performance;
• communicating to the public; and
• adaptation.

Economic rights are transferable, thereby allowing authors to transfer or license their rights to third parties.

Moral Rights

Moral rights foster a non-commercial relationship between the author and their work. These rights, which are non-transferable, consist of:

• the right to publicise;
• the authority to designate the name;
• the right to prohibit the modification of work;
• the right of access to the original work; and
• the right to prevent the destruction of the work.

Synchronisation Rights:

When it comes to synchronisation rights in Turkish law, it is not explicitly clear whether these are treated separately or require unique licences. In terms of the doctrine, synchronisation issues are handled through the general rules of copyright law.

The term of protection of a copyright on economic rights extends for 70 years following the author’s death. Exceptionally, databases are granted a 15-year protection from their publication date. Moral rights persist for 70 years following the author’s death and can be exercised by the author or, thereafter, by a designated succession of individuals.

Turkish copyright law does not require a formal notice of copyright ownership.

The collective rights management system in Türkiye is structured under the Regulation on Collective Management Organisations. This framework enables authors, rights holders and book publishers to form professional associations in their fields. These organisations are tasked with safeguarding the interests of their members, managing and administering rights, and handling the collection and distribution of royalties and compensation.

In Türkiye, copyright is automatically granted upon the creation of a work. There is no need for registration in order to obtain copyright protection.

Specific types of works, such as musical and cinematographic works, video games, and non-periodical publications, require obligatory registration. However, this process, which includes affixing a banderol, is designed not for the purpose of obtaining copyright protection but to establish ownership and aid in identifying infringements.

Additionally, there is a voluntary recording and registration system. This type of registration does not qualify a work for copyright protection either, but it acts as a method of time-stamping, securing the creation date, and providing evidence of ownership.

This framework of copyright protection in Türkiye applies to both individuals and organisations, including foreign entities.

The copyright registration process requires applicants to complete certain petitions and forms based on the type of work. The process is described as straightforward and the fees involved are generally minimal. These fees vary depending on the nature and scope of the work being registered.

The Copyright Law does not have any specific provision for incorrect information in copyright applications. Depending on the issue, the Copyright Office may get in contact with the applicant.

In Türkiye, copyright protection is automatically conferred upon the creation of a work, thereby eliminating the need for registration to acquire such protection. Consequently, there is no practice of issuing a refusal decision by the Copyright Office that would affect this protection.

Trade mark protection and copyright protection operate independently within their own legal frameworks. In some cases, a creation might be eligible for both copyright and trade mark protection, but under different aspects.

So, in certain circumstances, copyrights may also receive protection under trade mark law. This cumulative protection is contingent upon the work meeting the necessary criteria for trade mark protection.

Trade mark registration provides major benefits to the proprietor. By way of example, the proprietor:

• enjoys an exclusive right to use the mark on designated goods or services;
• may claim an injunction against unauthorised trade mark use;
• may claim damages caused by trade mark infringement;
• has the right to license third parties to use the registered mark; and
• may file an application for customs seizure based on the trade mark registration.

However, there are provisions related to unfair competition in the Commercial Law and the IP Law for the protection of unregistered trade marks. The IP Law states that if a sign used during trade prior to the date of application or the claimed priority date for the application to register a trade mark, the trade mark application shall be refused upon opposition from the proprietor of that prior sign if significant use is provided.

TÜRKPATENT is the only authority authorised for trade mark registration.

During the substantive examination by TÜRKPATENT, signs that are identical to or indistinguishably similar to a trade mark (that has been registered or for which registration has been applied) relating to identical goods and services or to goods and services of the identical type might be rejected ex officio. It is possible to use the online search portal of TÜRKPATENT but for similarity it might be better to use specialised trade mark search engines.

The Turkish trade mark legislation does not allow registration of series marks in same application.

The term of protection for registered trade marks is ten years from the date of application. Upon the request of the trade mark owner, this term may be renewed for periods of ten years.

Request for renewal needs to be made by the trade mark proprietor within six months prior to the expiry of the protection date and the information regarding the payment of the fee must be submitted to TÜRKPATENT within the same period. If no request is made or the information regarding payment of the renewal fee is not submitted to the TÜRKPATENT within this period, a renewal request may be made within six months following the expiry of the protection date, provided that an additional fee is paid.

There are no special requirements when renewing. However, if the renewal date is missed, there is no revival procedure.

A trade mark registration cannot be updated or refreshed, except for the minor material mistakes.

In order to file a trade mark application, the application must consist of:

• information on the identity of applicant;
• representation of trade mark;
• list of goods or services;
• technical specifications (if the application has been filed for collective or guarantee trade marks);
• proof of payment; and
• transliteration of non-Latin letters into the Latin alphabet (if letters other than the Latin alphabet are used in the reproduction of the trade mark).

There is no need to declare any proof of use or declaration of use when filing a trade mark application.

Turkish trade mark law allows multi-class trade mark applications. Application fees are calculated according to the number of classes covered. The official application fee is approximately EUR60 per class. The official registration fee does not depend on the number of classes and is approximately EUR170 per trade mark (as of early 2024).

The following are entitled to trade mark ownership:

• Turkish citizens;
• real or legal persons who are domiciled or who have commercial establishments within Turkish territory;
• persons who have application rights arising from the terms of the Paris Agreement and the Agreement Establishing the World Trade Organization; and
• in line with reciprocity principles, nationals of states that provide IP rights to Turkish nationals.

If the domicile of the applicant is not within the territories of Türkiye, all operations must be carried out by an authorised Turkish trade mark attorney.

In Türkiye, there are no special requirements related to use for trade mark registration and renewal. It is not necessary to file declaration of use or declaration of intent to use within specified time limits.

However, if the trade mark has not been put to genuine use in Türkiye by the trade mark proprietor in connection with the registered goods or services within a period of five years following the date of registration or if such use has been suspended for an uninterrupted period of five years, the trade mark may be cancelled upon request – unless there are proper reasons for non-use.

The trade mark examination in Türkiye consists of both formal and substantial stages. When a trade mark application is filed, TÜRKPATENT first examines the formal requirements. If the application meets these requirements, the TÜRKPATENT proceeds with the substantial examination stage. At the substantial examination stage, the TÜRKPATENT examines all applications for conflicts with prior registrations and applications.

In order to overcome a refusal based on prior registrations and applications, the applicant may provide a letter of consent. A letter of consent may be also filed at the application stage in order to prevent ex officio refusal.

After the publication of the trade mark application, anyone may submit to TÜRKPATENT their observations that the trade mark application should not be registered within the scope of the absolute grounds, with the exception of the refusal ground pertaining to prior identical or indistinguishably similar trade marks.

Besides, a trade mark application can be opposed by the related parties two months after the publication date. Any related party is entitled to file an opposition based on relative grounds.

Mistakes that do not involve any change in the content of the trade mark application, reproduction of the trade mark or the list of goods and services will be corrected upon the request of the applicant.

At the request of the applicant, a trade mark application can be divided into two or more applications concerning the goods or services covered until the registration is completed. Generally, applicants prefer to divide applications when partial refusal or opposition is received, so as to expedite registration procedures for goods and services not affected.

There is no specific provision for incorrect information in trade mark applications. Depending on the particular issue, TÜRKPATENT may get in contact with the applicant.

If the application does not have any formal deficiencies or the deficiencies are covered in due time, the substantive examination procedure starts. At the substantive examination stage, TÜRKPATENT firstly examines the registrability of the application according to the absolute grounds of refusal. As a result of the examination, the application can be accepted for publication or can be totally/partially refused.

TÜRKPATENT mainly examines the following refusal grounds ex officio:

• lack of distinctiveness;
• descriptiveness;
• misleading trade marks;
• identical or indistinguishably similar applications to prior trade marks (both registrations and applications) in relation to the same or same kind of goods or services;
• signs that are identical or confusingly similar to the state symbols;
• signs that are identical or confusingly similar to the full or abbreviated names of international or intergovernmental organisations or their symbols;
• signs that are against the public order or morality; and
• signs containing religious values or symbols.

Parties adversely affected by decisions taken by TÜRKPATENT may appeal the decisions before its Re-examination and Evaluation Board. Appeals must be made to TÜRKPATENT within two months from the notification date of the decision. It is not possible to seek an extension. The board will give the final decision. A legal proceeding can be instituted against these decisions at Ankara IP civil court within two months of the notification date of the decision.

Türkiye has been a member of the Madrid Protocol since 1 January 1999 and started to accept international applications from that date.

A trade mark application can be opposed by the related parties within a two-month time limit following the publication date. The two-month time limit is not extendable. A cooling-off period is not defined in the Turkish trade mark legislation.

The opposition may rely on both the absolute and relative grounds of refusal. Turkish legislation recognises dilution as a ground for opposition and also a ground for invalidation; however, if dilution is used as a ground for opposition, the opposing party must prove that the opponent’s trade marks are well known in Türkiye.

Any related party is entitled to file an opposition. If the opposition is based on the grounds of prior use and similarity, the opponent need not hold a trade mark registration in Türkiye. However, in other grounds for opposition, the opponent must base their claims on prior Turkish trade mark registrations or applications.

If the opposing party is domiciled in Türkiye, it is not obligatory to file the opposition via a registered Turkish trade mark attorney. However, if the opponent is not domiciled in Türkiye, oppositions must be completed via a registered Turkish trade mark attorney.

The opposition procedure before TÜRKPATENT does not include hearings. The oppositions are examined by a single examiner from TÜRKPATENT’s Trade Marks Department. The opponents can base their claims on every type of proof, especially for proving prior trade mark use. The most common types of proof are invoices, advertising materials and news articles.

Upon request of the applicant for the opposed trade mark, the opponent must prove the use of the trade mark on which the opposition is based to the extent that the trade mark has been registered for more than five years at the filing date of the opposed trade mark application. Within a time limit of one month, if the opponent cannot prove the genuine use of their trade mark, the opposition shall be refused within the scope of the likelihood of confusion claim.

Any decision of TÜRKPATENT’s Trade Marks Department might be appealed before TÜRKPATENT within a two-month time limit following the notification date of the related decision. The appeals are examined by TÜRKPATENT’s Re-examination and Evaluation Board, which is composed of at least three examiners. The board makes TÜRKPATENT’s final decision and these decisions might be appealed at the specialised IP courts within a two-month time limit following the notification date of the decision.

Trade Mark Cancellation

Under the IP Law, provisions allow for the initiation of a challenge against a trade mark registration via a cancellation action within a span of five years following the registration date. Nevertheless, certain grounds for cancellation can be raised without temporal limitations – notably, if the trade mark was registered in bad faith or lacks distinctiveness.

There is not any time limit for initiating a revocation action based on non-use of the trade mark.

Copyright Cancellation

Given that there is not any registration process in copyrights, there exists no cancellation process either.

Trade Mark Cancellation

There are two types of cancellation proceedings. A trade mark can be revoked or declared as invalid.

Grounds for Invalidation

If one of the conditions mentioned under the absolute and relative grounds for refusal of a trade mark exist, the cancellation of a trade mark shall be decided by the court.

Grounds for Revocation

The grounds on which a trade mark can be revoked are:

• non-use of the trade mark for a continuous period of five years;
• trade mark becoming generic for the registered goods or services;
• trade mark misleading the public concerning the nature, quality or geographic origin of the goods or services for which it is registered; and
• use of trade mark contrary to technical specifications for the guarantee mark or collective mark.

Any individual or entity – including competitors, interested parties, or owners of prior trade marks – may file a cancellation action (invalidation/revocation) against a trade mark. There is a requirement for the party initiating the cancellation to demonstrate a legal or commercial interest showing how the existence of the trade mark registration affects their rights.

Trade Mark Cancellation (Invalidation and Revocation)

Revocation actions against trade marks can be initiated before TÜRKPATENT, especially if based on non-use grounds. Administrative proceedings can be commenced by filing petitions or applications directly with TÜRKPATENT to challenge the validity or existence of a trade mark registration based on specific legal grounds.

Invalidation actions, on the other hand, are initiated before civil courts. Civil courts and specialised IP courts in Türkiye have jurisdiction to hear cases involving trade mark disputes, including actions for cancellation based on various grounds.

It is possible to request the partial cancellation of a trade mark for specific goods or services rather than of the entire registration. If the trade mark owner has not used the trade mark for specific goods or services covered by the registration and a third party can demonstrate this lack of use, they may request the partial cancellation of those unused goods or services.

Limited amendments might be considered in exceptional cases where there is a justifiable reason for introducing new evidence or claims that were not available or known at the start of the proceedings.

Actions involving cancellation and infringement of trade marks are typically heard separately. They are handled as distinct legal proceedings and decisions in these cases are usually not consolidated into a single proceeding.

However, according to the IP Law, the trade mark right owner must not put forward their right as a defence in an infringement proceeding that has been instituted by right owners who have an earlier priority or application date than the trade mark owner’s own right. Within the scope of this provision, cancellation and infringement actions can be initiated against the same trade mark simultaneously as separate legal actions.

Trade mark registrations obtained through fraudulent or bad faith filings can be cancelled through legal actions. If it is proven that the trade mark was registered in bad faith or through fraudulent means, it can be subject to cancellation without any temporal limitation. Additionally, the applicant might face legal penalties or compensations for fraudulent activities through legal actions.

In Türkiye, for trade mark assignments, a written and notarised agreement is required. Partial assignments are allowed for specific goods or services. Although registration of the assignment with TURKPATENT is not mandatory, it is essential for enforceability against third parties. Trade mark rights can be inherited upon the death of the owner.

Copyright assignments also necessitate a written and notarised agreement, under similar conditions. Assignments should specify each transferred economic rights. Copyrights are protected for 70 years after the author’s death and are inheritable by heirs until the expiration. Moral rights (including rights of attribution and integrity) are inalienable and cannot be assigned or waived, remaining with the author even after death.

Trade Mark Licensing in Türkiye

In Türkiye, trade mark licences can be either exclusive or non-exclusive. Typically, they are considered non-exclusive unless the agreement explicitly states otherwise.

Trade mark licenses can be partial, covering only specific goods or services.

Although a written agreement is beneficial for evidence purposes, Turkish law does not mandate notarisation and composition in writing for the validity of trade mark licence agreements.

Copyright Licensing in Türkiye

For copyrights, all contracts (including licences) must be in writing.

Moral rights cannot be licensed and each economic right subject to licence should be specified.

The parties involved have the freedom to set the terms of the contract, provided they do not conflict with mandatory legal provisions.

The legal framework allows for flexible licensing arrangements. However, it does not explicitly mention perpetual licences or archival rights.

Trade marks can be transferred or licensed to third parties, regardless of whether the trade marks are registered or pending following application.

Copyright protection in Türkiye starts with the creation and publication of the work and does not require registration with any authority. Therefore, the assignment and licensing of copyrights can occur any time after the protection starts.

Recording the trade mark assignment/licence before TÜRKPATENT is not mandatory. However, it is essential for enforceability against third parties.

Copyright protection in Türkiye starts with the creation and publication of the work and does not require registration. So, there is not any regulation regarding the recordal of an assignment/licence to the registry.

The Copyright Law grants the author the right to withdraw from transfer and licence agreements concerning financial rights. For this right to be exercised, the author’s interests must have been substantially violated owing to the non-use of the rights.

It is not valid to waive the right of withdrawal in advance. Contractual terms that prohibit the assertion of the right of withdrawal for more than two years are also invalid.

In Turkish law, trade marks and copyrights can be given as security and be subject to rights in rem.

In terms of trade marks, for the security to be valid, it must be in written form and notarised. Although registration in the registry is not mandatory, it is essential for enforceability against third parties.

As regards copyrights, for the security to be valid, it must be in written form and notarised.

Trade Marks

The general statute of limitations for trade mark claims is two years from the date the right holder becomes aware of the infringement and the infringer, but no later than ten years from the date of the infringing act (based on the Turkish Law of Obligations). The statute of limitations does not expire if infringement continues.

Copyrights

The general statute of limitations for copyright claims is ten years from the date of the infringing act (per the Copyright Law).

Trade Marks

The following acts are considered to be trade mark infringement:

• use of the trade mark without the consent of the trade mark proprietor;
• counterfeiting the trade mark by using the trade mark or a confusingly similar trade mark without the consent of the trade mark proprietor;

• selling, distributing, putting on the market in a different form, importing or exporting the products carrying the infringed trade mark, possessing for commercial purpose or offering to make a contract related to this product while being aware (or where reasonably expected to be aware) that the trade mark is counterfeited by use of the trade mark or a confusingly similar trade mark; and

• broadening or transferring to third parties, without consent, the rights given by the trade mark proprietor through licence.

Copyright

Unauthorised reproduction, distribution, adaptation, public performance, or communication to the public of a copyrighted work is considered to be infringement of copyright.

If an unpublished work is disclosed to the public without the consent of its creator, a claim for the cessation of infringement can only be pursued in the event of the dissemination of multiplied copies to the public through publication.

If an act of infringement is committed by representatives or employees of a business while performing their duties, a lawsuit can also be filed against the owner of the business.

The factors to be considered when determining whether use of trade mark or copyright constitutes infringement are established by statutes (eg, the Turkish IP Law for trade marks and the Turkish Copyright Law for copyrights), as well as through case law and legal precedents established by courts in various infringement cases.

Trade Mark Infringement Factors

Similarity is assessed by determining if the use of the mark creates a likelihood of confusion among consumers.

Copyright Infringement Factors

It is necessary to assess whether the allegedly infringing work is substantially similar to the copyrighted work in terms of expression, structure, or key elements. The level of originality and creativity of the copyrighted work must be evaluated in order to determine if the copied elements are protectable under copyright law.

Trade Mark Infringement

The primary party who can initiate an action for trade mark infringement is the registered owner of the trade mark. An exclusive licensee might also have standing to bring an action for infringement if granted the exclusive rights to use the trade mark and if allowed by the terms of the licence agreement or by statute. Depending on the terms of the licence agreement, a non-exclusive licensee or – in some cases – a non-licensee such as a distributor might have the right to join as a party in the action for infringement.

Copyright Infringement

Like trade marks, the copyright owner holds primary rights to initiate actions for copyright infringement. An exclusive licensee might have the right to act for infringement by the licence agreement terms.

Trade Mark Proceedings

In trade mark infringement cases, actions are typically initiated by individual trade mark owners or exclusive licensees. There are not specific provisions for collective actions where multiple parties join forces in a single action against trade mark infringement.

Copyright Proceedings

Similarly, in copyright infringement cases, individual copyright owners or exclusive licensees generally initiate actions against infringement.

Pre-litigation Considerations

There are two prerequisites for filing a trade mark or copyright lawsuit, as follows.

• Cease-and-desist letters – although not mandatory, sending a cease-and-desist letter to the alleged infringer might be a strategic step to inform them of the infringement and request cessation of the infringing activities.
• Alternative Dispute Resolution (ADR) – parties may opt for mediation or other ADR methods as an alternative to litigation in order to resolve disputes outside the courtroom.

Restrictions on Asserting Rights

Asserting trade mark or copyright rights should align with competition laws and should not violate principles related to fair competition.

The following courts have jurisdiction to hear trade mark or copyright matters at first, second and third instance.

• First instance – in Türkiye, specialised IP courts have jurisdiction over trade mark and copyright matters at the first instance. These courts handle cases related to infringement, validity, and other disputes concerning trade marks and copyrights.
• Second instance – appeals from decisions of the IP courts are typically heard by the regional courts of appeal.
• Third instance – the Court of Cassation is the highest court in Türkiye. In some exceptional cases, appeals against decisions from the regional courts of appeal might be brought before the Court of Cassation.

Costs Before Filing Lawsuits

The specific costs can vary based on the complexity of the case and the actions taken before filing a lawsuit. Although representation by a lawyer is not mandatory, it is highly recommended.

Foreign Trade Mark or Copyright Owners

Foreign trade mark or copyright owners can bring infringement claims in Türkiye. However, to assert their rights effectively, having their trade mark registered in Türkiye and especially using their trade marks in Türkiye can strengthen their position and the enforceability of their claims.

The complaint initiating a trade mark or copyright lawsuit should include specific details about the alleged infringement or violation.

The complaint should outline the legal basis for the alleged infringement and provide sufficient factual allegations to support the claims. A defendant in a trade mark or copyright action can respond to the lawsuit by filing their defence, which might include challenging the claims made by the plaintiff, presenting counterarguments, or filing counterclaims. This response initiates a legal process whereby both parties present their arguments and evidence to support their positions. In some cases, parties may be allowed to supplement pleadings with additional arguments or evidence, especially if new information becomes available.

In Türkiye, an alleged trade mark or copyright infringer may initiate declaratory judgment proceedings under certain circumstances. A potential defendant might seek a declaratory judgment to challenge the validity of the asserted trade mark. They might also seek a declaration from the court affirming non-infringement based on specific grounds, such as fair use or lack of similarity.

The alleged infringer may start declaratory judgment proceedings if they anticipate being subject to a trade mark or copyright infringement claim and wish to seek clarity on their legal position. Defendants might also opt to start parallel or related proceedings in other courts to challenge the validity of the IP rights or address related legal issues.

According to Turkish law, there are not any specialised alternative forums specifically dedicated to resolving small trade mark or copyright claims. IP disputes (including all trade mark and copyright matters) are typically heard in specialised IP courts, which handle cases irrespective of the claim size.

Decisions or determinations made by TÜRKPATENT regarding trade mark registrations can serve as important evidence in court proceedings. Additionally, courts may take into consideration the decisions or findings of TÜRKPATENT when evaluating infringement actions.

However, courts retain the authority to conduct an independent examination of the facts and make their own determinations. Importantly, courts are not obliged to strictly follow the conclusions or decisions made by TÜRKPATENT. They have the discretion to assess the evidence and make their own judgments based on the merits of the case.

In Türkiye, counterfeit marks or copyright counterfeiting refer to the unauthorised production, distribution or use of goods or works that imitate or replicate a registered trade mark or copyrighted material without the permission of the rightful owner.

Counterfeit Marks or Copyright Counterfeiting:

Counterfeit marks involve the unauthorised use or reproduction of a registered trade mark, whereas copyright counterfeiting pertains to the unauthorised copying, reproduction or distribution of copyrighted works without the owner’s authorisation.

Turkish law provides specific procedures and remedies to combat counterfeiting, including civil and administrative actions. Rights holders can seek injunctions, damages and the destruction of counterfeit goods through court orders. There are also border enforcement measures that allow rights holders to request that customs authorities prevent the entry or exit of counterfeit goods.

Individuals or entities involved in counterfeiting can be subject to criminal liability under Turkish law. Criminal penalties may include fines and imprisonment.

Bootlegging

Bootlegging typically involves the unauthorised reproduction, distribution or sale of copyrighted materials such as music, movies or other media, often without the consent of the copyright owner.

Similar to counterfeiting, Turkish law provides procedures and remedies to address bootlegging. Copyright owners can take legal action to prevent the unauthorised reproduction or distribution of their works, seeking damages and injunctions against bootlegged copies.

Those involved in bootlegging can also face criminal liability under Turkish law.

Türkiye has specialised IP courts that exclusively handle IP cases, including trade mark and copyright disputes. These courts are equipped with judges specialised in IP law. Parties can present their case to the judges and provide evidence to support their claims that can influence the court’s decision.

Although IP judges may have specialised knowledge, technical expertise might be provided by court-appointed experts to assist in cases involving complex technical or scientific aspects.

Trade mark registration can create a presumption of validity. This can simplify the burden of proof in litigation by placing initial evidentiary weight on the registered rights.

However, if the trade mark that is the ground for infringement action has been registered for at least five years at the date of the proceeding, upon the request of the opposing party, the complainant will be asked to submit evidence proving that they had genuinely used their trade mark on the goods and services during the five-year period or whether they have a proper reason for not using their trade mark during that period. Should the complainant fail to prove the aforesaid, the action shall be refused.

Parties in trade mark or copyright actions can apply for preliminary injunctions or evidence preservation orders to secure evidence that might be crucial for the case. This may involve requesting the court to order the preservation of evidence held by the opposing party or third parties.

During the trial phase, parties can submit requests to the court to produce specific evidence or documents that are relevant to the case. The court may issue orders compelling the production of such evidence if it is deemed essential to the case.

Courts in Türkiye may also appoint independent experts to collect and assess evidence, particularly in cases requiring technical or specialised knowledge.

Experts (eg, individuals with specialised knowledge in trade mark law, copyright law, or specific technical fields related to the disputed matter) may provide expert opinions to assist the court in understanding complex issues, technical details, or industry practices relevant to the case.

Surveys, especially consumer perception surveys or market research studies, can be utilised to demonstrate consumer confusion, market practices, or public perception regarding trade marks or copyrighted works.

Courts in Türkiye typically evaluate the admissibility and relevance of expert witness testimony and survey evidence based on their probative value in the specific case. The courts may consider various factors such as the expertise of the expert, the methodology used in conducting surveys, the relevance of the evidence to the issues in dispute, and whether the evidence helps in clarifying or proving relevant points in the case.

The typical costs for bringing a trade mark or copyright infringement action to conclusion in the first instance are as follows.

• Legal fees – lawyers’ fees can vary based on their experience and expertise, as well as on the complexity of the case.
• Court fees and expenses – court filing fees, administrative charges, and other expenses related to court proceedings contribute to the overall costs. These fees can differ depending on the nature and scope of the case.
• Evidence and expert costs – costs associated with obtaining evidence, expert opinions, surveys, and other supporting materials required for the case can add to the overall expenses.
• Appeals and further proceedings – if the case is appealed or requires further proceedings after the first instance judgment, additional costs for appellate proceedings may arise.
• Settlement and ADR – costs can vary based on whether the case is settled out of court or undergoes ADR. Settlements might result in reduced costs compared with a full trial.

In Türkiye, trade mark and copyright infringements are primarily dealt with through civil and criminal procedures. Administrative offences may not exist.

Trade mark infringement can lead to criminal liability under the IP Law and for general rules under the Turkish Criminal Law. Besides, copyright infringement can lead to criminal liability. Acts such as counterfeiting, unauthorised use, reproduction, distribution, or public display of trade marks or copyrighted works without authorisation can be subject to criminal penalties.

According to Turkish law, defences against trade mark infringement include priority rights, non-use, bad faith, acquiescence, fair use, estoppel, laches, violation of competition laws, and forfeiture.

It is important to note that, although some of these defences may not be explicitly recognised in the IP Law, they might still be considered in legal proceedings based on case law, principles of equity, or other relevant laws. It must also be noted that, even though certain defences such as bad faith may potentially lead to a complete dismissal of infringement claims, many others do not automatically negate liability but instead influence the scope of infringement or the remedies available.

In Turkish law, the concept of “fair use” both for trade marks and copyrighted works is addressed under different legal frameworks.

Fair Use of Trade Marks

Turkish trade mark law does not explicitly mention a “fair use” doctrine. However, there are certain circumstances where a trade mark can be used without the owner’s consent. The exact boundaries of permissible use are often determined on a case-by-case basis, taking into account the nature of use and its impact on the trade mark.

Fair Use of Copyrighted Works

Turkish copyright law provides for certain exceptions that might be regarded as “fair use”. These exceptions include acts such as quotation for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research. The law sets out specific conditions under which these exceptions apply, including the necessity of the use and its proportionality.

Satire or Parody Exception

There is presently no explicit article regarding the exception to copyright for satire and parody.

Under the Copyright Law, certain exceptions apply for private copying, as follows.

• The Copyright Law allows reproduction of works for personal use without profit. However, this reproduction should not unjustifiably harm the legitimate interests of the right holder.
• It is permissible for a person with the right to use a computer program to observe, examine and test the program’s functioning while performing actions such as loading, displaying, running, transmitting or storing the program – specifically, to determine the underlying ideas and principles of any element of the computer program.
• Reproducing and processing a computer program, including copying and translating the law, is allowed under certain conditions for the purpose of achieving interoperability with other programs.

In Türkiye, the legal framework provides specific exceptions for intermediaries such as Internet Service Providers (ISPs) in cases of both trade mark and copyright infringement. For trade mark and copyright infringements alike, these exceptions are crucial for ISPs to function without bearing the disproportionate burden of policing user-generated content on their platforms.

Trade Mark Infringement

ISPs are generally not held liable for trade mark infringements committed by users if they are not actively involved in or aware of the infringement.

• Notice and takedown – once an ISP is notified of a trade mark infringement (usually through a formal notice), it is expected to promptly remove or block access to the infringing content to avoid liability.
• Good faith and neutral role – ISPs must maintain neutrality and cannot be complicit in the infringing activities to claim this exemption.

Copyright Infringement

ISPs acting as hosting providers are exempt from liability for copyrighted material hosted on their servers, provided they did not have initial knowledge of the infringement.

• Active response required – upon receiving a notification of copyright infringement, ISPs are required to act promptly to remove the infringing content or disable access to it.
• Content neutrality – the exemption is contingent upon the ISP not being involved in the creation or distribution of the infringing content.

In Turkish law, the doctrines of exhaustion of rights for both trade mark and copyright have specific provisions.

Trade Mark Rights Exhaustion

Türkiye adapted the doctrine of international exhaustion of IP rights for trade marks through the IP Law. According to the proposed changes in the IP Law, a right will be exhausted strictly in respect of the goods put on the market by or with the owner’s consent.

Copyright Rights Exhaustion

The Copyright Law includes a doctrine of exhaustion of rights after the first sale within Türkiye. This prevents a copyright holder from controlling the circulation of lawfully made copies after they have been made available to the public. However, the treatment of digital content is not explicitly detailed.

Currently, Turkish legislation does not specifically provide an exception for qualified libraries and archives to reproduce and distribute copyrighted works.

Trade Mark Infringement in Turkish Law

In cases of trade mark infringement, Turkish law permits the trade mark owner to apply for preliminary injunctions through courts to halt potential infringements. The court may issue such injunctions if there is a high likelihood of infringement, but this is contingent on the presentation of clear facts and strong evidence. The measures taken can include the cessation of infringing acts or the seizure and custody of infringing products. However, these injunctions are rarely granted without substantial evidence. Additionally, the court may request a security deposit from the plaintiff as a safeguard.

Copyright Infringement in Turkish Law

Copyright infringement can include actions such as preventing the sale or distribution of infringing products and the destruction of infringing materials. Additionally, rights holders can request the publication of the court’s verdict in a gazette.

In Turkish law, there are specific provisions for monetary remedies in cases of trade mark and copyright infringement.

Trade Mark Remedies in Turkish Law

In Türkiye, trade mark infringement allows for compensation covering moral and material damages. The plaintiff can choose from three calculation methods for material damages – namely, potential income without infringement, the infringer’s net income from using the trade mark, or the equivalent licensing fee. Moral damages are determined by the court based on the infringement’s severity and are intended to provide fair restitution rather than punitive measures.

Copyright Remedies in Turkish Law

Copyright infringement remedies typically involve royalty compensation, assuming a hypothetical contract between the parties, with claims up to three times the contractual amount. Additionally, plaintiffs can seek non-material damages for violations of material and moral rights, covering both tangible and subjective losses.

In Turkish law, the party initiating a lawsuit is required to pay the official court fees. Principally, court costs (including expenses for expert examination and reports) are borne by the plaintiff. Each party is generally responsible for paying their own attorney’s fees. However, the losing party is required to reimburse the prevailing party for litigation expenses and an amount determined by the annually fixed minimum attorney fee’s tariff.

Ex parte injunctions, while legally permissible, are rarely granted in practice. Turkish IP courts generally opt instead to make assessment after both parties have had the chance to present their arguments.

In Türkiye, the legal system provides mechanisms for customs seizures of counterfeit and parallel import goods.

A centralised online application can be submitted to customs’ database to monitor exports and imports. The application is valid for one year and can be renewed. After the proper submission, when an infringed product is noticed before customs, the product is temporarily detained and the right holder is immediately informed. Within ten days of the notification of seizure (extendable by another ten days), an infringement action should be initiated or a temporary injunction decision issued by the court should be submitted.

In trade mark or copyright infringement cases in Türkiye, defendants have several possibilities to settle cases at various stages of the litigation process. Defendants might opt to settle the case before a lawsuit is filed or soon after receiving notice of the infringement claim. Parties may explore settlement options at different stages of the court proceedings – for example, after filing a response, during discovery, or even before the final judgment.

There are also formal mechanisms for settlement. Although not mandatory in every case, parties in trade mark or copyright disputes can opt for mediation facilitated by the court. Courts in Türkiye often encourage parties to consider settlement before proceeding to trial. If the parties reach a mutually acceptable agreement, they can formalise the terms in a settlement agreement.

In Türkiye, ADR methods such as mediation and arbitration are available for trade mark or copyright disputes. While ADR is available and encouraged, it is not compulsory in trade mark or copyright cases – although parties can opt for these methods to resolve their disputes.

Mediation involves a neutral mediator facilitating discussions between parties to help them reach a mutually acceptable settlement. The mediator does not decide on the case but, rather, assists the parties in finding common ground.

Arbitration proceedings are more formal and involve an arbitrator or a panel of arbitrators who hear the evidence presented by both parties and issue a binding decision. The decision reached through arbitration is legally enforceable.

The courts handling parallel cancellation and infringement proceedings may consider the inter-relationship between these cases. The influence of one proceeding on another can vary depending on the specifics of the cases and the stage of the proceedings.

If there is a pending cancellation or validity action against a trade mark in another forum, the court handling the infringement case might consider staying the proceedings until the validity issue is resolved. This ensures that the infringement case’s outcome aligns with the determination of the validity of the IP right in question.

In Türkiye, decisions related to trade mark or copyright infringement cases can be appealed to higher judicial bodies.

Parties dissatisfied with the first instance decision have the right to appeal to the Regional Courts of Justice within specified time limits (typically within two weeks) from the date of the first instance judgment. These courts hear appeals against decisions of the IP Courts.

If the dissatisfied party wishes to contest the decision of the Regional Courts of Justice, they can appeal further to the Court of Cassation. The Court of Cassation does not re-examine the factual elements of the case but, rather, reviews the application of law and procedural matters. The Court of Cassation provides the highest level of review for legal matters and procedural correctness.

Typically, the party intending to appeal a trial court decision must file the appeal within two weeks following the date of the judgment. The duration for a decision on an appeal against a trial court decision can vary significantly. Appeal proceedings usually take a year or more, depending on the complexity of the case, workload of the appellate court, and other procedural factors.

There are no specific provisions exclusively tailored for appellate procedures in trade mark or copyright proceedings in Türkiye. However, the general rules and procedures for appeals apply to  trade mark and copyright disputes.

In Türkiye, appeals against trade mark or copyright decisions typically focus primarily on legal issues rather than re-examining factual aspects of the case.

Regional Courts of Justice and the Court of Cassation primarily assess whether the trial court correctly interpreted and applied the law. They examine whether the lower court’s decision was in accordance with legal principles and procedural rules.

The Court of Cassation does not typically re-examine or reconsider the factual evidence presented during the trial phase. The appeal process focuses more on examining legal errors or incorrect application of legal principles.

Turkish law recognises the rights of individuals to protect their personal rights, which include their name, image and likeness. These rights are primarily governed by provisions in the Turkish Civil Law that relate to personal rights.

If a celebrity’s name or likeness is used as a trade mark without their consent, it could constitute a violation of their rights of publicity. By way of example, registering a celebrity’s name as a trade mark for products or services without their permission might be challenged on the grounds that it infringes upon their personal rights. In addition, according to the IP Law, if the trade mark application includes the name, trade name, photograph, copyright or any other IP right of another person (not limited to celebrities), the application will be rejected upon the objection of the right holder.

Türkiye has unfair competition laws that can affect trade marks and copyrights, as follows.

• The Turkish Commercial Law includes provisions on unfair competition. It outlines various actions that are considered unfair and can impact business practices, including those related to trade marks and copyrights.
• Consumer protection laws protect consumers from deceptive and unfair practices. They can indirectly impact trade marks and copyrights, especially in cases where the use of these rights is used to mislead or deceive consumers.
• The Turkish Competition Law, which is aimed at preventing anti-competitive practices, can also intersect with trade mark and copyright issues.

There are several emerging issues and recent developments in Türkiye in respect of IP issues.

• The rise of digital marketplaces and social media platforms has significantly increased the potential for IP infringements. In response, there is a growing emphasis on enforcing IP rights in the digital domain, including the monitoring of online platforms and the use of digital rights management technologies.
• The Digital Copyright Proposal, which aims to regulate how digital platforms compensate content creators, reflects the changing landscape of content creation and distribution. It signifies a shift towards recognising and monetarily rewarding the efforts of content creators in the digital realm – a topic that is gaining both local and global attention.
• The question of IP rights for AI-generated works is a global challenge. Turkish law – like many others – is based on the concept of human authorship, resulting in a legal grey area for AI creations.

Overall, these emerging issues highlight the ongoing need for Turkish IP law to adapt to the realities of the digital age and technological advancements.

In the context of Turkish law, there are specific considerations for trade marks and copyrights on the internet, particularly concerning the liability of service providers and the removal of infringing material.

Trade Marks

Service providers are responsible for removing or blocking access to content that infringes upon trade marks when notified.

Trade mark owners have the right to take legal action for infringement and request the removal of infringing content.

Copyrights

Service providers have responsibilities regarding copyright infringements and must take action when notified of potential violations.

Copyright owners can seek the removal of infringing content through legal channels.

In Türkiye, there are certain rules and norms regarding trade marks and copyrights, especially as they pertain to their use in business.

• Trade mark registration in Türkiye is not mandatory. However, it is highly recommended as it provides legal certainty. Registered trade marks offer stronger legal protection against infringement.
• Copyright is automatically granted upon the creation of an original work that is fixed in a tangible medium of expression. No registration is required in Türkiye for copyright protection. However, registering a copyright can serve as prima facie evidence for the date of creation, which can be useful in enforcement and litigation.