In an era where every transaction can take place through the
Internet, trademark holders would like to immediately prevent each
and every illegal use in the blink of an eye. Unfortunately,
in Turkey, the law protecting IP rights has not developed fast
enough to protect trademark holders' rights in
every aspect of life. Therefore, although the Trademark Decree
Law provides the same protection to trademarks in cyberspace,
no specific measures defined in law apply in order to prevent
infringing acts in a short period of time.
While the Trademark Decree Law accepts the existence of
trademark infringement when counterfeit goods are sold through
a website; or when the trademark is displayed on the web page
or used as a domain name, code, key code or similar, neither
civil nor the criminal provisions provide an
immediate solution to cease the illegal use of a trademark on
In other words, the law does not provide a solution equivalent
to a raid, where the infringing acts are immediately ceased.
As a result of this, trademark owners need to start a criminal
or civil lawsuit, and wait until the end of the judgment (more
than 18 months) to have the illegal use ceased.
Alternatively, trademark owners might request a preliminary
injunction within the scope of a civil action, which cannot be
the best option for trademark owners who are constantly
dealing with online trademark infringement and cybersquatting
Moreover, it is possible to say that the nature of online
infringement cases does not always comply with the principles
of the Civil Procedural Law. For example, the plaintiff needs
to identify the defendant's name and address on its
petition, and this information may not be available in most of the
online trademark infringement and cybersquatting cases.
On the other hand, the Law no 5846 on Intellectual and Artistic
Work, in its additional provision Article 4, provides for the
taking down of a website containing copyright-infringing
elements, after the copyright owner sends a warning letter to
the content provider (and second to the service
provider). However, in practice, this option works efficiently
only for rights holders who can easily prove their rights
(such as for video or music).
Apart from starting a criminal or civil action, there is no
governmental authority to apply in cases of online trademark
infringement in Turkey. Therefore, it is possible to say that
trademark infringements do not result in taking down a website
(or relevant web page) as the first step in Turkey. Considering
that time is of the essence in ceasing the illegal use and/or
preventing the relevant public's access to the website,
Turkish trademark law is challenging in online
trademark infringement and cybersquatting cases.
While the Turkish legal system does not provide any option for
an expeditious and even temporary order for blocking access to
a website, Internet Law no 5651 provides a limited list of
crimes which can result in taking down the website. According
to Article 8 of Law no 5651, access to websites is subject
to blocking if there is sufficient suspicion that certain
crimes are being committed on a particular website.
Although the crimes are limited to incitement to suicide, sexual
exploitation and abuse of children, facilitation of the use of
drugs, provision of substances dangerous to health, obscenity,
gambling, and crimes committed against Atatürk, a broad
range of crimes can be considered within this
scope. Therefore, a considerable number of websites have been
taken down based on this law (including web 2.0 platforms such
as YouTube and Blogger), upon court decisions and
administrative bodies. Law no 5651 is much discussed as it has
a detrimental effect on freedom of expression and it is paradoxical
that the law is overprotecting on one side and not protecting
on the other.
The Trademark Decree Law's provisions on trademark
infringement are cumbersome when it comes to applying them on
the online platform. This will cause damage to trademark
owners unless an expeditious solution is introduced.
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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On 8 September 2016 (C-160/15), the CJEU ruled that the posting of a hyperlink to copyright-protected works located on another website does not constitute copyright infringement when the link poster does not seek financial gain.
The chapter on the UK summarises the IP court and litigation system in the UK, recent developments in relation to IP law and practice, the forms and availability of IP protection and trends and outlook in the IP sphere.
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