TÜRKIYE Law and Practice Contributed by: Meltem Manav and Yeşim Kumova, KM Legal
of protection sought, and the commercial strategy of the rights holder. Where the subject matter concerns technical solutions or inventions, patent protection is generally preferred, as it provides strong exclusive rights over functional- ity. However, patents require disclosure and are time- limited and non-renewable. Therefore, where the invention can be kept confidential, businesses may instead prefer trade secret protection. For product appearance, design protection is typically the primary route, as it protects the visual features of a product. However, where the design also functions as a source identifier, trade mark protection (eg, 3D marks) may be preferred due to its potentially indefi- nite duration, provided distinctiveness can be estab- lished. In practice, the decision is driven by factors such as duration of protection, evidentiary burden, enforce- ability, disclosure requirements, and the risk of inva- lidity. 8.2 Cumulative and Overlapping Protection The protection of an intellectual creation under multi- ple intellectual property regimes, under different provi- sions of the same regime, or under both intellectual property law and unfair competition law, is referred to in doctrine as the principle of cumulative protection. Typical examples include the protection of a shape mark also as a design (Article 55 of the IPL) or as a work of fine art (Article 4 of the FSEK). According to the prevailing view in doctrine, for cumu- lative protection to apply, the term of protection of the relevant intellectual property right must not have expired. Otherwise, this would effectively circumvent the time-limited nature of IP protection through the indefinite protection afforded by unfair competition rules. A sign not protected as a trade mark under the IPL may nevertheless be protected under unfair com- petition provisions. In its decision dated 6 June 2024 (11th Civil Chamber, E. 2022/6756, K. 2024/4798), the Court of Cassation held that, “since trademark infringement was specifi- cally regulated under the (then applicable) Decree-
Law No 556, and the relevant provision of the Turk- ish Commercial Code no longer included references to ”trade names, business names, marks or similar signs,“ cumulative protection could not be granted”. Accordingly, the Court found that claims based on unfair competition should have been dismissed. In recent years, the Court of Cassation has consist- ently rejected unfair competition claims in trade mark infringement cases. In practice, courts assess each right separately and do not automatically extend protection across regimes. Where multiple rights are asserted, courts examine whether the conditions for protection are met under each legal basis and may apply a lex specia- lis approach, particularly in cases involving overlap between trade mark law and unfair competition. In this context, unfair competition provisions are treated as complementary rather than substitutive and are inter- preted restrictively where a specific IP regime already governs the dispute. 8.3 Patents and Trade Secrets Confidential know-how and technical information may be protected as trade secrets while they remain undis- closed and meet the requisite criteria. This protec- tion subsists before filing and continues after a patent application is filed with the TURKPATENT until publi- cation. Publication occurs 18 months from the filing or priority date, or earlier if a grant decision is issued, in which case the application and patent are published together. Upon publication, the invention enters the public domain and ceases to qualify as a trade secret. Protection thereafter relies solely on the patent. Once disclosed, the information cannot regain trade secret status. Accordingly, following expiry or invali- dation of the patent, the invention remains publicly accessible. Only undisclosed ancillary know-how that has been consistently kept confidential may continue to be protected as a trade secret. 8.4 Trade Marks, Trade Dress and Industrial Designs A design is defined under Article 55 (1) of the IPL as “the appearance of the whole or a part of a product, or of the ornamentation thereon, resulting from features such as lines, shape, form, colour, material or surface
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