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Penalty Provisions in Trademark Law

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

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Trademark is an absolute right. Therefore, legislative regulations aim protecting this right, moreover the regulations contain punitive articles and other sanctions. In this newsletter the punitive articles and sanctions mentioned will be explained with the practice field, in consideration of Turkish Law.

In the first place we had better express ‚Äėthe principle of legality' which is a basic notion in Criminal Law: in the Constitution of the Turkish Republic, the punitive articles must be arranged by a code, however a decree law regulates the trademark issue. Therefore the punitive articles in the decree law could not be applied until the year 2009, the acceptance a new code including the punitive articles of Decree Law No. 556 dated 1995 Concerning to the Protection of Trade Marks ("TDL"). Now punitive articles about the trademark are applicable and entirely legal in Turkey.


TDL says ‚ÄėActs Admitted as Infringement of Trademark', while talking about the acts requiring legal sanction. In general, these acts are (i.) directly or imitatively utilization of trademark by third person, at the same or similar goods and services with the registration, by taking the advantages of confusion in the eyes of public, (ii.) directly or imitatively utilization of trademark by third person, at the same goods and services with the registration, (iii.) if there is any undeserved gain by help of famousness of the registered trademark, the directly or imitatively utilization of trademark by third person, at the different goods and services. 

The utilization and/or the formation of signs and marks, due to the aforementioned acts, can be ceased by court decision. Beside it is possible to seize every kind of commercial products and to cease the trading made by such infringement. To begin this legal procedure, first step is the prosecution appeal. Search and seizure are the demand subject of petition. The applicant is obliged to prove the existence of the reasonable doubt, by submitting the product infringed and/or the photos of it. Occasionally the prosecution may need expert examining to prove the imitation, in other word the infringement. At this process, an original product and an imitation will be taken and subjected to examining.

Consequently, police forces execute the prosecution order court decision for search and seize. Then the judgment begins, regarding the file contents and evidences the punishments probable are as fallows: (i.) Person offering for sale, selling, producing a good or service by infringement against someone else's trademark rights by quoting or confusion, shall be sentenced to an imprisonment term of between one and three years or to pay a fine of up to twenty thousand days punitive fines, (ii.) Person removing without authority the mark indicating the protection placed on the goods or on the package of the goods, shall be sentenced to an imprisonment term of between one and three years or to pay a fine of up to five thousand days punitive fines, (iii.) Person selling, transferring, putting in pledge, leasing someone else's trademark rights without authority, shall be sentenced to an imprisonment term of between two and four years to pay a fine of up to five thousand days punitive fines.

In conclusion it is necessary to indicate that the prior condition of punishments mentioned is a registration of related trademark in Turkey. If the offender is a legal person, particular safety measures will be applied. Offender's denunciation is an impunity reason, if it serves to arrest the first producer.