TÜRKIYE Law and Practice Contributed by: Meltem Manav and Yeşim Kumova, KM Legal
5.4 Duration and Loss of Protection There is no fixed statutory term for trade secret pro- tection. It subsists indefinitely so long as the infor- mation remains secret. If the information enters the public domain, whether through accidental disclosure, employee error or inadequate safeguards, its trade secret status is lost and protection ceases. However, this does not preclude claims for damages arising from wrongful disclosure. Likewise, voluntary disclo- sure without adequate confidentiality measures may terminate protection, as the requirement of secrecy is no longer met. 5.5 Enforcement and Remedies In practice, trade secret disputes are primarily pur- sued under the unfair competition regime, with rem- edies including determination, cessation, removal of effects, damages and interim injunctions. Criminal sanctions may also apply. Certain acts of unfair competition carry penalties of imprisonment and/or judicial fines, and the unauthorised disclosure of trade secrets obtained by virtue of one’s profes- sion or position may give rise to criminal liability under the TPC. Although proceedings are generally public, courts may, under the Code of Civil Procedure, restrict access to confidential evidence to protect trade secrets. Claims brought solely to obtain a competitor’s confidential information may be dismissed for lack of legal interest or as an abuse of process. 6. Know-How 6.1 Definition and Legal Basis of Know-How Under Turkish law, the concept of “know-how” is not explicitly and comprehensively defined in a single statute. In practice, know-how is understood as expe- rience-based knowledge, including technical informa- tion, production methods, commercial experience and business-specific practical expertise. Know-how is a broader concept than a trade secret. For information to qualify as a trade secret, it must be confidential, have economic value, and be subject to reasonable measures to preserve its secrecy. Know- how, however, does not necessarily need to meet such strict confidentiality requirements.
Know-how is defined under Article 3 (f) of the Compe- tition Authority’s Communiqué No 2002/2 on Vertical Agreements as a package of non-patented, practical, secret, substantial and identified information resulting from the supplier’s experience and testing. The Com- muniqué further regulates the treatment of know-how within the framework of competition law, particularly in relation to its transfer in technology transfer arrange- ments. Pursuant to Article 55 of the TCC, a person acts contrary to honest commercial practices by “unlaw- fully disclosing production and business secrets; in particular, by exploiting or communicating to others information or trade secrets obtained secretly, without authorisation, or by other unlawful means.” Accordingly, the unauthorised acquisition and use of know-how by competitors or third parties constitutes unfair competition under Turkish law and may give rise to both civil and criminal proceedings. 6.2 Protectability Requirements and Scope Although there is no clear statutory definition under Turkish law granting know-how a specific proprietary status, it is generally understood as a combination of technical knowledge and practical experience relating to a product or service. Know-how may cover both technical and commer- cial information, including manufacturing methods, technical processes, formulas, algorithms, as well as customer portfolios, market knowledge, product infor- mation and sales strategies. Know-how does not need to be novel in the patent sense, nor does it necessarily require strict secrecy as in trade secrets. However, it must possess economic value capable of providing a competitive advantage, and typically results from accumulated knowledge and experience. 6.3 Ownership, Creation and Employee Know-How Pursuant to Article 396 of the TCO, an employee may not use for their own benefit or disclose to third par- ties any information learned in the course of employ- ment, particularly production and business secrets,
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