TÜRKIYE Law and Practice Contributed by: Korcan Dericioğlu, Gonca Adalı Başmakcı, Ekin Karakuş Öcal and Önder Erol Ünsal, Ankara Patent
after the first-instance judgment, additional costs for appellate proceedings may arise. • Settlement and ADR – costs can vary based on whether the case is settled out of court or undergoes ADR. Settlements might result in reduced costs compared with a full trial. 9. Defences and Exceptions to Infringement 9.1 Defences to Trade Mark Infringement According to Turkish law, defences against trade mark infringement include priority rights, non- use, bad faith, acquiescence, fair use, estoppel, laches, violation of competition laws, and for - feiture. It is important to note that, although some of these defences may not be explicitly recognised in the IP Law, they might still be considered in legal proceedings based on case law, principles of equity, or other relevant laws. It must also be noted that, even though certain defences such as bad faith may potentially lead to a complete dismissal of infringement claims, many others do not automatically negate liability but instead influence the scope of infringement or the rem - edies available. 9.2 Defences to Copyright Infringement (Fair Use/Fair Dealing) In Turkish law, the concept of “fair use” both for trade marks and copyrighted works is addressed under different legal frameworks. Fair Use of Trade Marks Turkish trade mark law does not explicitly men - tion a “fair use” doctrine. However, there are certain circumstances where a trade mark can be used without the owner’s consent. The exact boundaries of permissible use are often deter -
mined on a case-by-case basis, taking into account the nature of use and its impact on the trade mark. Fair Use of Copyrighted Works Turkish copyright law provides for certain excep - tions that might be regarded as “fair use”. These exceptions include acts such as quotation for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research. The law sets out specific conditions under which these exceptions apply, including the necessity of the use and its proportionality. Satire or Parody Exception There is presently no explicit article regarding the exception to copyright for satire and parody. 9.3 Exhaustion In Turkish law, the doctrines of exhaustion of rights for both trade mark and copyright have specific provisions. Trade Mark Rights Exhaustion Türkiye adapted the doctrine of international exhaustion of IP rights for trade marks through the IP Law. According to the proposed changes in the IP Law, a right will be exhausted strictly in respect of the goods put on the market by or with the owner’s consent. Copyright Rights Exhaustion The Copyright Law includes a doctrine of exhaustion of rights after the first sale within Türkiye. This prevents a copyright holder from controlling the circulation of lawfully made cop - ies after they have been made available to the public. However, the treatment of digital content is not explicitly detailed.
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