Turkey: Combat Against Counterfeiting

As it is the case for all markets throughout the world, counterfeiting is a serious threat for Turkish market as well. In Turkey many industries ranging from textile sector to technology suffer from such illegitimate acts. Apart from its obvious damage to reputation and loss of income for manufacturers, also the State is subject to tax losses. According to the Turkish Department of Anti-smuggling and Organized Crime reports, the counterfeit trade market in Turkey reached to 10 billion dollars which is the third biggest market in the world. The 58 percent of consumers prefer counterfeit products as they are cheap and believe that counterfeit products are quality as the originals.

By the way, Turkey is important from not only local economy impact point of view, but also from the perspective of neighbour countries as transit trade continues to be a big issue. Needless to say that many health and security risks arise as consumers are the ones to who counterfeit products reach ultimately. Well then, how the world and Turkey can combat with counterfeiting?

Pursuant to the view of International Trademark Association, counterfeiting is the illegal manufacturing and sale of goods, including packaging, bearing an unauthorised trademark which is identical to a validly registered trademark or which cannot be distinguished from the valid trademark.

There are a number of regulations under international agreements that protect trademarks owners against counterfeit trade. For instance, TRIPS (The Agreement on Trade Related Aspects of Intellectual Property Rights), which is an international agreement administered by the World Trade Organisation, for the first time introduced intellectual property law into the international trading system and remains to be the most comprehensive international agreement on intellectual property to date. TRIPS contains requirements that national laws must meet for protecting counterfeit products and for copyrights, including industrial designs; patents; trademarks; trade dress. Another international treaty is The Berne Convention. The Convention outlines copyright laws for every country that is a part of the union, which includes the United States, France, Italy, Germany, Japan, Korea and dozens of others. The Berne Convention was drafted especially for the protection authors of artistic works. The most related agreement about counterfeiting is the Anti- Counterfeiting Trade Agreement. This Agreement was drafted in response to the increasing concerns over the counterfeiting and piracy of intellectual property. It also includes prosecuting copyright infringement and forcing a counterfeiter to pay damages to artistic work owners. Further, the Agreement also provides measures for prosecuting individuals who use technology, particularly the Internet, to distribute stolen intellectual property. However, the European Commission rejected the agreement on 4 July 2012 as it posed a threat to online freedoms.

Furthermore, many international organisations support the development and passage of legislations, regulations, and trade agreements throughout the world that increase national and international enforcement mechanisms against counterfeiting such as INTA (International Trademark Association), IACC (The International Anti-Counterfeiting Coalition), and WIPO (World Intellectual Property Organisation)

Turkey has been one of the countries who acted quickly to become party of such international treaties. Further, from the local perspective, brands and other associated rights are protected under the provisions of Decree-Law No. 556 on the Protection of Trademarks ("Trademark Decree"), which was published in 1995 and fairly aligned with the EU Legislation.

Pursuant to the Trademark Decree, using any sign that is identical to the registered trademark in relation to goods or services or using any sign which, because of its identicalness or similarity to the registered trademark and the identicalness or similarity of the goods or services constitutes a trademark infringement and unfair competition. Article 61/A of the said Decree stipulates that one who manufactures goods or services, exposes for sale or sells by infringing a third party's trademark right by means of creating confusion or imitation shall be sentenced between one year to three years and to pay a judicial fine. Likewise, pursuant to the provisions of the Industrial Designs Decree, infringing industrial rights result in civil and criminal liabilities.

Furthermore, pursuant to Article 54 of Turkish Commercial Code, acts or commercial practices which are deceptive or in any other manner against good faith, which effects the relationship between competitors or between the suppliers and customers, are accepted as against unfair competition rules. Article 55 enumerates acts against good faith and commercial practices. Accordingly, it is unfair if the party takes measures suitable for creating confusion with the goods, business products, activities or affairs of others. These acts cause criminal and civil liabilities.

The presence of administrative and legal authorities with adequate technical knowledge and competency is necessary in order to effectively implement the legislation mentioned hereinabove, which, in essence, contains efficient civil and criminal protective measures. Special units of customs administration and police successfully work in cooperation against counterfeiting to prevent infringement of right holders' rights. In Turkey, specilazed prosecutors are being assigned to look after these issues and specialist courts are prevalent as well as general courts. Hence, it is possible to say that a specialist practice is developing in respect hereof. As a matter of fact, while unfair competition cases are under the competency of commercial courts, cases concerning infringement of trademark rights, within the scope of the Decree Law, are under the competencies of specialist Civil or Criminal Courts of Intellectual Property Rights. These courts work effectively and grant decisions within fairly reasonable times.

As a conclusion, it would be fair to state that there is sufficient legislation under Turkish law, providing effective protection to combat counterfeiting. Additionally, both administrative and judicial framework is efficient, as such authorities have established procedures against infringement of trademark rights However, in practice, the person who sells or produces counterfeit products does not receive improsement if it is the first act regarding counterfeiting. Trademark owners expect that the development and enforcement of the legislation should continue for the sake of deterrence.

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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