TÜRKIYE Law and Practice Contributed by: Meltem Manav and Yeşim Kumova, KM Legal
texture.” Article 5 of the IPL, which sets out examples of signs capable of constituting a trade mark, also provides that shapes, as well as the form of goods or their packaging, may be registered as trade marks. In light of the overlap between these provisions, the same subject matter may, in principle, benefit from both trade mark and design protection cumulatively. For an appearance to be protected as a design, it must be new and possess individual character. Where these requirements are not met in respect of two- or three-dimensional shapes, such shapes may never- theless be protected under trade mark law, provided that they fulfil a source-identifying function. Under Turkish law, the distinction between trade marks and designs lies primarily in their function. Trade marks serve as a source-identifying function, indicating the commercial origin of goods or services, whereas designs protect the visual appearance of a product. “Trade dress” is not recognised as a separate statutory right but may be protected under unfair com- petition provisions where the overall appearance of a product creates a risk of confusion. In addition, both regimes exclude features dictated solely by technical function, which cannot be monopolised through either trade mark or design protection. 8.5 Copyright and Trade Marks The intersection of copyright with other intellectual property rights, particularly trade marks and designs, is a frequently encountered phenomenon. This is expressly reflected in Article 58 of the IPL, which pro- vides that design protection under the IPL shall not prejudice protection afforded under FSEK, provided that the relevant conditions are met. For an intellectual creation to benefit from copyright protection, it must bear the author’s individuality and fall within one of the four categories of works (literary and scientific works, musical works, works of fine art, or cinematographic works). Where such conditions are met, a logo may also benefit from trade mark protec- tion, provided that it possesses distinctive character. From a trade mark perspective, Article 6 of the IPL stipulates that where a trade mark application con- tains another person’s name, trade name, photograph,
copyright or any other intellectual property right, the application shall be refused upon opposition by the rights holder. In practice, courts have invalidated word and figurative marks incorporating copyrighted ele- ments such as cartoon or comic characters, as well as the titles and logos of books, magazines, films or television series. In light of the legislative framework and case law in Türkiye, it can be concluded that, where copyright overlaps with trade mark and design rights, rights holders may benefit from protection under both FSEK and the IPL concurrently. 8.6 Enforcement and Remedies Across Multiple IP Rights Under Turkish law, claims based on different IP rights may, in principle, be brought within the same pro- ceedings, provided that they arise from the same set of facts. It is common in practice to assert multiple grounds (eg, trade mark infringement, design infringe- ment and unfair competition) cumulatively in a single action. Where infringement of multiple IP rights is alleged, courts assess each claim independently, examining whether the conditions for protection and infringement are met under each legal regime. If multiple infringe- ments are established, the court may grant remedies on the basis of one or more rights, depending on the circumstances. However, Turkish law does not permit double recov- ery. Although claims may be based on different legal grounds, the claimant cannot obtain compensation In cross-border IP disputes, Turkish law applies the principle of territoriality. Pursuant to the Turkish International Private and Procedural Law No 5718 (MOHUK), intellectual property rights are governed by the law of the country for which protection is sought (lex loci protectionis). Accordingly, courts apply Turk- ish law where protection is claimed in Türkiye, even if the dispute has foreign elements. In addition, under MOHUK, the parties may, after the infringement has more than once for the same damage. 8.7 International and Cross-Border Considerations
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