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Introduction to IP in Turkey

July 2014 - Intellectual Property. Legal Developments by Baspinar & Partners Law Firm.

More articles by this firm.

In the world where the importance of corporate image increases, nonmaterial assets, become more of a nonfigurative issue, day by day. Trademarks, patents - utility models, industrial designs, copyrights and unfair competition are the main subjects of Intellectual Property. We will discuss each of these subjects below.

1.     Trademark

 

Trademarks, which are used to make distinct goods and services, could be composed of words, letters, numbers, colored or colorless logos, figures and a combination of these. In Turkey trademarks are protected in care of Turkish Patent Institute ("TPI") according to Decree Law No 556. Basically, protection begins from the registration date and proceeds ten years. By renewing, it is possible to own the endless protection.

 

The constituent of trademark must be distinctive, not similar or identical with a trademark already registered or filed in the same scope of the goods or services. In addition, (i.) the constituent indicating type, feature, value, geographical sources for the goods or services for which registration is sought, (ii.) the constituent which allow differentiation of any occupation and members of the artistic or commercial groups or used commonly by any commercial community along with the trademarks which include the names exclusively or principally, (iii.) the constituent figuratively indicating the good or its essential value which is stemming from the natural structure or as a result of the technical processes of the product to be registered, (iv.) the marks misleading the public in view of the quality, quantity or place of production, geographical source of the goods or services, (v.) country flags, military or dynasty armorial bearings submitted to WIPO International Bureau, seals and emblems of the countries and the international organizations, (vi.) Words and signs representing religious values and symbols, (vii.) constituent detrimental to public order and general ethical rules, cannot be registered as a trademark.

 

To clarify litigation issue for trademarks, we need to mention nullity and infringement. In Turkey there is opportunity to suit the owner of a trademark unused during five years or registered by TPI in defiance of abovementioned reasons for rejection. Within the scope of protection, the trademark owner has also a right to suit prevention of infringement. Trademark issue is as explained basically.

 

2.     Patent & Utility Model

 

Patent, is one of the intellectual also industrial property rights, which prevent the production, utilization or sale of the invention by others without permission of the inventor. The utility model provides protection of the novel and industrially applicable inventions. It is possible to summarize differences between patent and utility models, as the fallowing:

 

 

 

Patens

Utility Models

Novelty

+

+

Inventive Step

+

-

Industrial Applicability

+

+

Methods and the products

resulted from such methods

+

-

Chemical substances

+

-

Research

+

-

Examination

+

-

Publication

+

+

Protection Period

20 / 7 years

10 years

 

It is possible to obtain patent rights in other countries, by filing applications in each country or applying to Patent Co-operation Treaty ("PCT"), or to European Patent Convention ("EPC").

The patent holder has also juridical rights. It is possible to demand; prevention, cease, removal ad/or determination of violation, compensation, withholding, recognition of proprietary rights on the counterfeited products and tools, figurative changes and eradication, notification of the judicial resolutions to the parties concerned, announcement to the public and advertisement of the final verdict, precautionary measures.

3.     Copyright

 

In Turkey, copyright, is protected by Code of Intellectual and Artistic Work No 5846. We do not need to register or apply any association to protect copyrights. Differently, copyright takes a place, at the same time with the production of work.

 

Author may assign his rights arising from his works by an agreement about that transfer. These assignable rights are, publication, reproduction, distribution and representation. Author, possesses those rights lifetime. Their inheritor also could manage copyrights, during 70 years after death of author.

 

Author could retract his copyrights, if the assignee does not use the rights (publication, reproduction, distribution and representation) in accordance with his benefits. Retract process begins with notification sent by notary, and continues by lawsuit.

 

4.     Unfair Competition

 

Turkish Commercial Code ("TCC") regulates borders for a fair competition. TCC include law enforcement and penalties as well.

 

TCC states the acts or commercial practices between competitors, providers and customers that are misleading or violating the rules of ethics are unfair and contrary to the law. The same provision also formulates the purpose of the unfair competition provisions, as the formation of the context of fair and uncorrupted competition for the interest of all participants, including competitors and customers. This requires, without any doubt, that the interest of the general public be taken into consideration and duly protected, as well.

At this section we will discuss mainly unfair competition by using Intellectual Property. Among the examples listed in TCC Article 55.(1).a, the first one is the advertisement and sale methods that violate good faith principles. The provision states these unlawful methods as being: (i) decrying a competitors' business, products, prices and activities with false and misleading declarations; (ii) false and misleading declarations regarding a competitors' business, products, prices, stocks or activities; (iii) cause and benefit from confusion deliberately created with a competitors' business, products or works; (iv) selling some products at their wholesale prices and notably declaring these in its advertisements, and misleading its customers concerning its own, or its competitors' talents, by selling these products at their wholesale prices; (v) misleading customers as to the real value of products using bundling practices; (vi) restricting the choice of customers using aggressive sale tactics; and/or (vii) using provisions containing false or missing information as to the price, payment conditions, contract period, consumers' right in an installment sale, or consumer loan agreements.

When we mention decrying competitors' business, we need to read Intellectual Properties secondly, after products. Unfair competition by causing confusion could generally occur at trademark issues.

TCC sets forth legal and criminal consequences that may result from lawsuits, which may be filed in relation to the unfair competition cases. The legal actions that may be taken are: declaratory action, action to prevent the unfair competition act, action for restitution action for compensation of the damages that result from the unfair competition act.

In these instances, the court may also rule for the payment of a specific amount for damages, condemnation of the act, and announcement of the decision by way of the media. The scope and the form of announcement are decided to be by the court.

According to article 62 of the TCC, those who (i) intentionally commit the acts of unfair competition, (ii) intentionally provide false or misleading information relating to its personal situation, products, business products, commercial activities and activities in order that its offers and proposal be given preference above its competitors, (iii) entice employees, officers or other workers to reveal their employers' or customers' production or commercial secrets, or (iv) have not prevented a punishable act of unfair competition performed by their employees, workers or representatives, and/or have not restored the action of the misrepresentation, will be punished by two years of imprisonment, or will be fined, accordingly.