Non-Use Defence In Litigation Proceedings Before Turkish Courts: Special Emphasis On Pharmaceutical Trademarks!

Both the Industrial Property Code No. 6769 ("the IPC") and the Regulation on the Implementation of the IPC ("the Regulation") were published and entered into force in 2017, uniting all IP rights in one Code which were priorly regulated by different decree-laws.

Article 25/7 of the IPC regulates invalidation actions and Article 29/2 regulates infringement actions regarding trademarks. Both articles refer in their last paragraphs to Article 19 foreseeing the procedures for the non-use defence. The non-use defence mechanism may therefore be applicable for invalidation and infringement actions.

In invalidation actions based on confusing similarity, the non-use defence may be claimed by the defendant similar to proceedings before the Turkish Patent and Trademark Office (the Office). The plaintiff must prove use of the trademark that the court action relied upon within the previous five years, starting from the filing date of the court action. This mechanism has