TÜRKIYE Law and Practice Contributed by: Korcan Dericioğlu, Gonca Adalı Başmakcı, Ekin Karakuş Öcal and Önder Erol Ünsal, Ankara Patent
7.4 Prerequisites and Restrictions to Filing a Lawsuit There are two prerequisites for filing a trade mark or copyright lawsuit, as follows. • Cease-and-desist letters – although not mandatory, sending a cease-and-desist letter to the alleged infringer might be a strategic step to inform them of the infringement and request cessation of the infringing activities. • ADR – parties may opt for mediation or other ADR methods as an alternative to litigation in order to resolve disputes outside the court - room. Restrictions on Asserting Rights Asserting trade mark or copyright rights should align with competition laws and should not vio - late principles related to fair competition. 7.5 Lawsuit Procedure The following courts have jurisdiction to hear trade mark or copyright matters at first, second and third instance. • First instance – in Türkiye, specialised IP courts have jurisdiction over trade mark and copyright matters at the first instance. These courts handle cases related to infringement, validity, and other disputes concerning trade marks and copyrights. • Second instance – appeals from decisions of IP courts are typically heard by the regional courts of appeal. • Third instance – the Court of Cassation is the highest court in Türkiye. In some excep - tional cases, appeals against decisions of the regional courts of appeal might be brought before the Court of Cassation.
• broadening or transferring to third parties, without consent, the rights given by the trade mark proprietor through licence. Copyright Unauthorised reproduction, distribution, adapta - tion, public performance, or communication to the public of a copyrighted work is considered to be infringement of copyright. If an unpublished work is disclosed to the public without the con - sent of its creator, a claim for the cessation of infringement can only be pursued in the event of the dissemination of multiplied copies to the public through publication. If an act of infringement is committed by rep - resentatives or employees of a business while performing their duties, a lawsuit can also be filed against the owner of the business. 7.3 Factors in Determining Infringement The factors to be considered when determining whether use of trade mark or copyright consti - tutes infringement are established by statutes (eg, the Turkish IP Law for trade marks and the Turkish Copyright Law for copyrights), as well as through case law and legal precedents estab - lished by courts in various infringement cases. Trade Mark Infringement Factors Similarity is assessed by determining if the use of the mark creates a likelihood of confusion among consumers. Copyright Infringement Factors It is necessary to assess whether the allegedly infringing work is substantially similar to the cop - yrighted work in terms of expression, structure, or key elements. The level of originality and crea - tivity of the copyrighted work must be evaluated in order to determine if the copied elements are protectable under copyright law.
672 CHAMBERS.COM
Powered by FlippingBook