TÜRKIYE Law and Practice Contributed by: Meltem Manav and Yeşim Kumova, KM Legal
The owner may not prevent third-party use in accord- ance with honest commercial practices, including: • use of one’s own name or address; • descriptive use indicating characteristics of goods or services; and • use necessary to indicate the intended purpose of a product (eg, accessories or spare parts). In such actions, the following defences may be raised: • lawful use; • prior use conferring a superior right; • joint ownership (eg, arising from partnership or inheritance); • use of non-distinctive descriptive elements; and • exhaustion of rights, where goods have been law- fully placed on the market, unless they have been altered or impaired. A trade mark owner may not rely on its right as a defence against a claim brought by a party holding an earlier filing or priority right. 2.6 Trade Mark Enforcement and Remedies The following acts constitute trade mark infringement: • unauthorised use of the mark as specified in Article 7; • imitation by using the mark or an indistinguishably similar sign; • marketing, importing/exporting, possessing or offering goods bearing an infringing mark where the person knows or should know of the infringe- ment; and • unauthorised extension or transfer of licence rights. Available actions include determination, cessation and prevention of infringement, removal of effects, and claims for pecuniary and non-pecuniary dam- ages. Additional damages may be claimed where the mark’s reputation is harmed. Trade mark rights are enforceable from publication of registration. After publication of the application, dam- ages may be claimed for acts that would have been prohibited upon registration. However, courts cannot decide before publication.
Jurisdiction lies with IP Civil and Criminal Courts; actions against TURKPATENT fall under the Ankara IP Courts. Intentional infringement may result in impris- onment (1–3 years) and judicial fines. Interim measures may be granted, including cessation, seizure and preservation of infringing goods (including in customs zones), and provision of security. Unregistered trade marks may be protected under unfair competition rules where use creates confusion or misleads the public. In such cases, parties may seek determination, injunction, removal of effects (including correction or destruction), and damages (pecuniary and non-pecuniary). Intentional unfair com- petition may lead to imprisonment of up to two years or a judicial fine. 3. Copyright 3.1 Legal Framework and Copyrightable Works Copyright in Türkiye is primarily governed by the Law on Intellectual and Artistic Works No 5846 (FSEK). Relevant secondary legislation includes the Regula- tion on Collecting Societies and the Regulation on Neighbouring Rights. Under FSEK, protection arises automatically for “works” reflecting the author’s indi- viduality. Protected categories include: • scientific and literary works (including software); • musical works; • works of fine art (paintings, sculptures, architec- tural and graphic works); and • cinematographic works. Original adaptations and compilations are also pro- tected. Although designs are primarily regulated under the IPL, they may enjoy parallel copyright protection if they qualify as a “work”. Applied art such as furni- ture or fashion may be protected as fine art where it reflects sufficient artistic originality, allowing cumula- tive protection under both regimes. 3.2 Requirements for Copyright Protection For protection under FSEK, a creation must cumula- tively meet the criteria in Articles 1/B and 2–5. It must
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