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 Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement.

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
• the TRIPS Agreement.

Trade mark and copyright protection under the related Turkish laws do not impose any limitation with regard to the nationality of the rights-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 rights-holders who are Turkish nationals.

In Türkiye, the IP Law provides protection of 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 that belong to professional organisations that are public institutions and, as such, 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 will be refused upon opposition in respect of 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 the goods or rendering of the services (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 the superscript TM symbol. Therefore, using symbols or phrases such as the superscript TM 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 rights-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, and 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.

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.

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.

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.

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 both to 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.

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 is 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 proved.

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 same 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 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 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 when it comes to 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 both of formal and substantial stages. When a trade mark application is filed, TÜRKPATENT first examines the formal requirements. If the application meets these requirements, TÜRKPATENT proceeds with the substantial examination stage. At the substantial examination stage, TÜRKPATENT examines all applications for conflicts with prior registrations and applications.

Mistakes in an application for a trade mark during the process of registration that do not involve any change in the content of the trade mark application, the representation of the trade mark, or the list of goods and services it applies to 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 first 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;
• applications for trade marks that are identical or indistinguishably similar 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 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.

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.

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 Opposition

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.

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 exists, the cancellation of a trade mark will 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.

Ability to File an Opposition

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.

Ability to File a Revocation/Cancellation

Any individual or entity – including competitors, interested parties, or the 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 Opposition

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 will be refused within the scope of the likelihood of confusion claim.

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.

Any decision of the TÜRKPATENT’s Trade Marks Department can 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 specialised IP courts within a two-month time limit following the notification date of the decision.

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 at the same time 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 licences 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.

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

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.

Copyright protection in Türkiye starts with the creation and publication of the work and does not require registration with any authority. Therefore, 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.

Trade Marks

The general statute of limitations for trade mark claims is two years from the date the rights-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 this product 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.

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.
• 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 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 of 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 foreign trade mark or copyright owners’ position and the enforceability of their claims.

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 who specialise 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 that they have a proper reason for not using their trade mark during that period. Should the complainant fail to prove the aforesaid, the action will be refused.

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.

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.

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.

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 an assessment after both parties have had the chance to present their arguments.

In Türkiye, the legal system provides mechanisms for customs seizure 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 rights-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 served.

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 appeal 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 appeal, 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, the workload of the appellate court, and other procedural factors.

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.