Gray market goods, commonly referred to as "parallel
imports," are genuine and legitimate goods, but imported from
outside the trademark owner's selective distributorship system.
Importing gray market goods in competition with authorized
distributors is illegal in many jurisdictions.
What about Turkey? Does the importation of gray market goods
from another country in which the trademark owner consented or even
placed the goods on the market itself, or the distribution of goods
outside the trademark owner's selective distribution system,
constitute trademark infringement in Turkey?
General Rule in Turkey
In Turkey, the exhaustion rule, as set out in Decree No. 556 on
the Protection of Trademark Rights (the "Trademark
Decree") provides that acts relating to a product
bearing a registered trademark do not constitute trademark
infringement if the acts occurred after the product was released
into the Turkish market by the owner or with the owner's
consent, as trademark rights are considered to have already been
exhausted. Consequently, as of the first authorized sale of the
product bearing a registered trademark in Turkey, the trademark
owner cannot challenge further sales, or the export or re-import of
these products into Turkey. The Trademark Decree accepts national
exhaustion and provides that a trademark holder's consent to
the initial placement of a product in Turkey authorizes further
imports of the same product without the trademark holder's
Application of the Rule on Parallel Imports
In practice, however, Turkish courts interpret the principle of
exhaustion more broadly than expressed in the Trademark Decree. The
Turkish Supreme Court of Appeals has consistently held that once a
trademark owner or authorized seller places a product with a
trademark registered in Turkey on the Turkish market, a third
party's parallel import of that product cannot be restricted,
even by the exclusive distributor, unless the third party changes
or impairs the product. Consequently, even though the Trademark
Decree accepts national exhaustion, in practice, Turkish courts
apply an international exhaustion rule.
Effects of the Rule on Local Exclusive Distributors
In Turkey, the national exhaustion of trademark rights is
unaffected by the distribution system agreed upon between the
distributor and the trademark holder. Turkish courts reject the
exclusive distributor arguments because the contract between the
trademark holder and the distributor has reciprocal effect. This
means neither the distributor nor trademark holder has an absolute
right to prevent the parallel import.
Comparison with the EU
Turkish courts' longstanding interpretation of the
exhaustion principle differs from that of the EU. In the EU, while
trademark rights cannot be invoked to restrain the free movement of
goods within the EU, they can be used to prevent the entry of goods
into the EU. As a result, in the EU trademark rights can protect
owners against parallel traders. The EU adopts a regional
exhaustion regime and only applies the rule for parallel trading of
products outside the EU.
Exceptions to the Rule
Exhaustion of trademark rights does not apply where the importer
or reseller acts in a way that impairs the quality of the goods or
reputation of the trademark. In other words, the trademark owner
can raise claims on the grounds of trademark infringement or unfair
competition against the parallel-imported goods if the importer or
seller altered, changed, or impaired the goods in a way that
decreases the trademark's reputation or the quality of the
The importer or seller must also comply with the specific
regulatory rules applicable to the particular product. For
instance, a parallel import of cosmetics must be imported in
compliance with the cosmetics regulation, absent which the import
would constitute unfair competition.
Although, under the Trademark Decree, the exhaustion principle
is generally applicable, Turkish practice interprets exhaustion of
trademark rights more broadly and, therefore, parallel imports of
genuine products is not considered trademark infringement.
Nevertheless, resellers and parallel importers cannot use
exhaustion of trademark rights as a defense if they impair or
damage the quality or reputation of the products or they do not
comply with the regulatory requirements for a particular
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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