Turkey: Trademark Squatting: Why Registration Of Your Trademark In Turkey Matters

Faced with a trademark squatter, the real trademark owner will have two options in Turkey.

Suppose that your company has a brand that is registered as a trademark in its incorporation country, as well as in some other countries around the world in which your company does its business. One day, you decide that you would like to expand your business into Turkey. One of the first things that you should consider doing is to have your brand registered as a trademark by the trademark authority in Turkey, the Turkish Patent Institute (the "TPI"). You are able to get the registration application filed through the World Intellectual Property Organization ("WIPO") or a local trademark counsel. A few months later, however, the TPI's decision rejecting your application due to a prior registration of the identical brand by a third-party in Turkey is served on your company. Welcome to the quagmire of trademark squatting in Turkey.

Trademark squatting is generally defined as the practice of registration of brands as trademarks in bad faith prior to the registration by the real trademark owner in a certain jurisdiction. If the trademark registration system of the concerned jurisdiction operates on a "first come, first serve" basis, the existence of the registration of the trademark by the trademark squatter will block the real trademark owner's path to getting its trademark registered. Faced with a trademark squatter, the real trademark owner will have two options in Turkey: It will either have to purchase its own trademark from the trademark squatter, of course in return for payment of a certain amount of money, or it will have to initiate a lawsuit before the Turkish IP Courts to get the trademark squatter's trademark deregistered (the "cancellation lawsuit").

Suppose that the option of filing a cancellation lawsuit with the Turkish IP Courts is elected. If the squatted trademark is a "well-known mark" within the meaning of Article 6bis of the Paris Convention for the Protection of Industrial Property, that will be a relatively easy case to the extent that the well-known character of the squatted trademark is evident or proved before the Turkish IP Courts with extensive evidence submitted which relates to the following aspects, as recommended by WIPO in its Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks: (i) the degree of knowledge or recognition of the mark in the relevant sector of the public; (ii) the duration, extent and geographical area; (iii) of any use of the mark; the duration, extent and geographical area of any use of the mark; (iv) the duration, extent and geographical area of any promotion of the mark, including advertising or publicity and the presentation, at fairs or exhibitions, of the goods and/or services to which the mark applies; (v) the duration and geographical area of any registrations, and/or any applications for registration, of the mark, to the extent that they reflect use or recognition of the mark; (vi) the record of successful enforcement of rights in the mark, in particular, the extent to which the mark was recognized as well-known by competent authorities; and (vii) the value associated with the mark.

The problem begins when the squatted trademark is not recognized in the relevant sector in Turkey at the time the lawsuit was filed. Despite one decision it rendered in the 2000s, the Court of Appeals has required recognition, at least in the relevant sector in Turkey, to bestow the privilege of being "well-known" upon trademarks. A trademark may well be widely recognized within a country, or even in a certain continent; however, this would not mean that the relevant sector in Turkey would be associated with that very trademark. In such cases, the real owner of the trademark who does not seem to be at fault, other than by acting too slow in getting its brand registered as a trademark in Turkey, is quite helpless. This is because, unlike some other jurisdictions such as Japan, registration in bad faith does not constitute a ground for cancellation of a trademark, in and of itself, under Turkish law. Therefore, if the squatted trademark does not constitute a well-known mark due to its non-recognition within the relevant sector in Turkey, the real trademark owner must rely on some other argument, together with the squatter's registration in bad faith. In many jurisdictions around the world, the non-use of a trademark exists as a ground for its cancellation. Under Turkish law, the non-use ground has been useful for getting squatted trademarks cancelled because a trademark squatter who has registered a third person's trademark would most likely not use it but instead would just hold it in order to transfer it to the real trademark owner. Thanks to the Turkish Constitutional Court, the non-use ground referred to in Article 42 of the Trademark Decree Law No. 556 was recently annulled through its decision dated July 24, 2014. Therefore, the grounds that the real owner of the trademark not recognized in the relevant sector in Turkey were narrowed down. The only remaining ground that the real trademark owner may rely upon in most cases is "existence of a likelihood of confusion on the part of the public as to the nature, quality, place of production and geographical origin in respect of the goods or services the relevant product is registered," the application of which has not yet been extensively analyzed by the Turkish Court of Appeals.

As a result, our advice is to get your company's brand registered as a trademark in Turkey as soon as you foresee the expansion of your company's operation into Turkey before you find yourselves helpless vis-à-vis trademark squatters.

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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