Turkey: Why Turkey Should Take Another Step Forward Against Counterfeiting And Sign Acta (Anti-Counterfeiting Trade Agreement)?

Last Updated: 16 January 2012
Article by Barış Kalayci and Tugce Avcisert

On October 1, 2011, the Ministry of Foreign Affairs of Japan held the signing ceremony for the Anti-Counterfeiting Trade Agreement (ACTA) in Tokyo. The United States, Australia, Canada, Korea, Japan, New Zealand, Morocco, and Singapore signed the Agreement on the ceremony day, noting that effective enforcement of intellectual property rights is vital to sustaining economic growth across all industries and globally. By signing the Agreement, the parties also noted that the proliferation of counterfeit and pirated goods, as well as of services that distribute infringing material, undermines legitimate trade and sustainable development of world economy, causes significant financial losses for right holders and legitimate businesses, and in some cases, provides a source of revenue for organized crime and otherwise poses risks to the public. Pointing out such important issues, the parties aim for an international cooperation and more effective international enforcement.

With this aim, the parties have signed ACTA which is considered to be the highest-standard plurilateral agreement ever achieved concerning the enforcement of intellectual property rights.

The European Union, Mexico, and Switzerland, attended the ceremony and confirmed their continuing strong support for and preparations to sign the Agreement as soon as practicable. The next step in bringing the ACTA into force is the deposit of instruments of ratification, acceptance, or approval from each of the signatories. The agreement will enter into force following the deposit of the sixth such instrument.

The agreement will remain open for signature by participants in its negotiation1, and by any other World Trade Organization (WTO) Members the participants may agree to by consensus, from 1 May 2011 until 1 May 2013. Therefore, we suggest that Turkey shall sign ACTA based on the following grounds:

  • Turkey is one of the countries in which the counterfeit products are manufactured and unveiled to the market very intensively, causing a lot of tax losses and thousands of real employment.

Turkey is advised to sign the Agreement at the first place, because trademark infringement via counterfeiting and piracy is an important problem of Turkey. Turkey has been shown to be one of the countries in which counterfeiting and piracy are serious issues. According to the OECD Report dated February 2011, Turkey consumes between $ 3, 5 to 4, 4 billion of internationally traded counterfeit and pirated goods and services. Another important amount is that 58 % of Turkish people consume counterfeit and pirated of domestic goods and services according to the OECD Report referred above. Moreover, between $400 million to 1 $ billion of digital piracy is estimated to be consumed in Turkey. Counterfeiting and piracy facilitate in the Turkish economy as "underground economy" that deprives the government of revenues, dislocates thousands of legitimate jobs, indeterminate investment, raises costs for law enforcement and exposes consumers to dangerous and ineffective products. Apart from the amount referred above, it is important to state that 135, 000 people have lost their jobs because of counterfeiting and piracy. As for analysis conducted by European Union (EU), Turkey is determined to be one of the top five countries of origin for infringing products, and has also been identified as one of the leading originators of counterfeiting pharmaceutical products.

  • The public awareness on the intellectual property rights should be increased and undesired economic effects of infringements of such rights should be eliminated to be able to convert local creativity into registered rights and attract foreign investments which would lead Turkey to become an "emerged" country.

Although counterfeiting and piracy are hot topics for Turkish economy, there is not enough awareness on the subject in public. People tend to buy infringing goods and services, since such goods and services are much cheaper than their original ones, and they unfortunately ignore the above mentioned numbers considering severe in Turkish economy. In other words, people do not consider intellectual property rights as proprietary rights, for instance; they avoid from stealing money, however they usually do not have any problems with stealing intellectual property. This is the main reason of the proliferation of counterfeit and pirated goods in Turkey. Therefore, the awareness level of public has to be increased in order to combat such proliferation of intellectual property rights' infringement effectively.

Even though the problem regarding counterfeiting and piracy in Turkey seems big, there is no reason not to reach a solution with cooperation. In other words this problem is resolvable with time and cooperative effort. Accordingly, to increase public awareness in Turkey, being a party to ACTA is important in terms of providing an international support on the fight against counterfeiting and piracy. Indeed, ACTA requires an international cooperation including information sharing. Signing parties to ACTA state that international cooperation is vital to realizing effective protection of intellectual property rights and it should be encouraged regardless of the origin of the goods infringing intellectual property rights, or the location or nationality of the right holder.

With the achievement of international cooperation, undesired economic effects of such infringements referred above can be eliminated easily and Turkey, with its strong labor force, will have no more hinder to convert local creativity into registered rights, which will also attract foreign investments.

  • More importantly, the current civil and criminal enforcement and border measures that are sought be ACTA are already available in Turkey, in other words, Turkish Laws are in compliance with the Agreement.

Signing parties to ACTA intent to provide effective and appropriate means for the enforcement of intellectual property rights taking into account differences in their respective legal systems and practices. They desire to combat infringements in digital environment, too. Within this aim, ACTA imposes obligations on signing parties with regard to ensure that enforcement procedures are available under their law so as to permit effective action against any act of infringement of intellectual property rights covered by ACTA, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements. ACTA underlines the need for proportionality between the seriousness of the infringement, the interest of third parties and the applicable measures, remedies and penalties and regulates such measures under following headings: Civil enforcement, border measures, criminal enforcement and enforcement of intellectual property rights in the digital environment.

To compare said obligations imposed by ACTA with Turkish law, it can be concluded that Turkish law is in compliance with the obligations in Agreement.

For instance, Article 62 with the heading "Appeals of the Proprietor of the Trademark" of the Decree Law numbered 556 regulates that Turkish judicial authorities have the authority to issue an order against a party to desist from an infringement, to prevent infringing goods from entering into the channels of commerce, to compensate for the amount of damages, to order that such infringing goods be destroyed, to order the seizure or other taking into custody suspect goods and of materials and implements relevant to the act of infringement.

Moreover, pursuant to the Article 61/A of Decree Law numbered 556; "The person, who is manufacturing, offering for sale and sale the goods or services, as infringing with confusion or identical to someone else's trademark right, is punished with imprisonment between one and three years and pay criminal fines up to twenty thousand days." In addition to that, pursuant to the Article 39 of Turkish Criminal Code, "Guiding about how to commit a crime or providing instruments used when committing crime and helping either before committing crime or during committing crime and therefore simplifying criminal's crime" is deemed as "aiding and abetting", accordingly the person who aids and abets needs to be punished.

Since the Turkish Customs Code and relevant customs regulations were amended in line with the Trade-Related Aspects of Intellectual Property Rights' (TRIPS) provisions, these regulations regarding border IP measures are also in compliance with regulations imposed by the Agreement, and permit customs authorities to cooperate with right holders, even enabling right holders to enjoy fast destruction procedures. Such border measures are regulated in Article 57 of Turkish Customs Code numbered 4458.

The new Internet Crimes Law no. 5651 entered into force on May 23, 2007, which regulates protection for right holders and therefore is also in compliance with the Agreement in terms of enforcement of intellectual property rights in digital environment.

Thus, in case Turkey signs the ACTA Agreement, there will not be any difficulties regarding amending related laws and regulations on intellectual property rights and we strongly suggest that Turkey shall be a party to the Agreement bearing also in mind afore mentioned reasons.

Footnotes

1.Australia, the Republic of Austria, the Kingdom of Belgium, the Republic of Bulgaria, Canada, the Republic of Cyprus, the Czech Republic, the Kingdom of Denmark, the Republic of Estonia, the European Union, the Republic of Finland, the French Republic, the Federal Republic of Germany, the Hellenic Republic, the Republic of Hungary, Ireland, the Italian Republic, Japan, the Republic of Korea, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Malta, the United Mexican States, the Kingdom of Morocco, the Kingdom of the Netherlands, New Zealand, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Singapore, the Slovak Republic, the Republic of Slovenia, the Kingdom of Spain, the Kingdom of Sweden, the Swiss Confederation, the United Kingdom of Great Britain and Northern Ireland, and the United States of America.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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