TÜRKIYE Law and Practice Contributed by: Korcan Dericioğlu, Gonca Adalı Başmakcı, Ekin Karakuş Öcal and Önder Erol Ünsal, Ankara Patent
ish Patent and Trademark Office (“TÜRKPAT - ENT”) 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: (a) signs related to the sovereignty of the Republic of Türkiye; (b) signs and designations accepted by the State as official control and guarantee signs; (c) signs and designations of a non-eco - nomic nature belonging to the State, local administrations, and other public legal entities; (d) signs and designations that belong to professional organisations that are public institutions and, as such, cannot be regis - tered as trade and service marks; (e) signs and designations of associations operating for the public benefit by the decision of the Council of Ministers; and (f) other signs that need to be protected for public interest reasons (such as political party emblems). Trade mark applications that are identical or sim - ilar 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. 2.2 Essential Elements of Trade Mark Protection 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 determin -
ing substantial use, factors such as the duration of sign usage, advertising and marketing expen - ditures, market share, and the geographical area in which the trade mark was used will be taken into account. 2.3 Trade Mark Rights 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 propri - etor 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 reg - istered 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;
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