Non-Use Defence In Litigation Proceedings In Turkey

Our May 2019 article in LL&P focused on the non-use defence in opposition proceedings. This time we will be concentrating on the non-use defence in court proceedings. Article 25/7 of the Industrial Property Code (IPC) regulates invalidation actions and Article 29/2 regulates infringement actions regarding trade marks. Both articles refer in their last paragraphs to Article 19 foreseeing the procedures for the non-use defence. Article 19 of the IPC governs the non-use defence in opposition proceedings. Accordingly, the mechanism of a non-use defence can 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 trade mark that the court action relied upon within the previous five years, starting from the filing date of the court action. This