Turkey: Goods With Unfair Mark Not Entering To The Domestic Market

Last Updated: 12 August 2015
Article by Özlem Aslan

The trademark owner is the exclusive owner of the rights arising from registering a trademark. In other words, the society is not allowed to use a registered trademark. Registration grants a significant monopoly to the trademark owner including prohibition, and we shall not forget that a registered trademark also gives some responsibilities. The primary responsibility is using the trademark, using it "seriously". The purpose is not closing any mark to the society in a useless and meaningless way, but to use it in trade in order the businesses to differentiate their products and services from each other. So, it is not possible to pull off by saying "I have a registered trademark!" after using a trademark for a good only for a few times.

However, the legal use of a trademark also has a limited quality. Article 14 of the Decree Law No. 556 Pertaining to the Protection of Trademarks sets out the definition of "using a trademark" as using the trademark on the good or packages just for export purposes. It's sufficient for a trademark created for a certain foreign market to meet the conditions of only that foreign market. For example, you might not prefer the low quality goods sold at the foreign market to be called with the same trademark of the high quality goods you sell in the domestic market.

So, while using a legally registered trademark on the good or packages only for export purposes is recognized as using a trademark, is it possible to tell that a company producing without considering to sell it in the domestic market and exporting a good bearing an unfair mark or only exporting a good bearing an unfair mark has no responsibility?

While the rights arising from a trademark registration exclusively belong to the trademark owner as we have mentioned above, where does unfair use of a registered trademark appear? For unfair use, the trademark should be used although one does not have the right to use the trademark. The methods for unfair use are not limited in the Decree Law and can be expanded by analogy, and this unfair use can be prohibited by the trademark owner. The methods listed in the Decree Law and can be prohibited by the trademark owner are placing an unfair mark on a good or its package; releasing a good bearing an unfair mark to the market or stocking for this purpose; proposing its delivery or offering or rendering the services under that mark; entrance of the good bearing an unfair mark to the customs zone; subjecting the relevant good to a procedure or use approved by the customs office; using the unfair mark in the enterprise's business documents and advertisements; using the same or similar mark as a domain name, router code, keyword or similar for creating a trade effect online, provided that the person using the mark has no right for using the mark or no legitimate connection with the mark.

Acting upon the differences between the rulings of the courts of first instance and the Supreme Court; we will criticize the different rulings taken for a company producing and exporting a good with an imitation trademark without considering to sell it in the domestic market, and a company only exporting the good.

 For the trademark violations, the courts of first instance may rule that there is no trademark violation by the company producing and exporting or only exporting without producing the good bearing an unfair mark, although they find out the existence of a trademark violation.

The Supreme Court and the doctrine, however, agrees the Decree Law sets out that a good bearing an unfair mark can be prohibited from entering the customs zone and from being subjected to a procedure or use approved by the customs office; the violation conditions listed in the Decree Law are not limited; the people, who know or need to know that the trademark is imitated by using the trademark or indistinguishably similar trademark, to have these products for trading purposes also creates a violation to the trademark right according to the article 61/c of the Decree Law, therefore transit passing of the goods bearing unfair mark without the permission of the trademark owner causes a violation of the trademark. The Supreme Court rulings refer to the TRIPS Agreement, which Turkey is a party of, and tell that the Agreement brings a liability to the contracting countries for removing the goods, which cause a trademark right violation, outside the trade channels in a way preventing the beneficiaries of the goods from damages. In the light of all these explanations, it's been considered that having and exporting fake products produced by imitating a trademark without the permission of the trademark owner constitutes a crime and a violation to the trademark right.

At this very moment, as it also creates a violation to the trademark right according to the article 61/c of the Decree Law when the people, who know or need to know that the trademark is imitated by using the trademark or indistinguishably similar trademark, have these products for trading purposes, the question whether a company whose only scope of business is "exporting" should be considered as "the people, who know or need to know" comes into mind.

Likewise, should the defense of a company doing contracted manufacturing upon the request of a buyer located at abroad, using the unfair mark on the package label and exporting the product without releasing it to the domestic market considered as valid?

Regardless from the answer of such questions for the contracting manufacturers and exporter companies, it is important that the answer is predictable, rather than its content. Therefore, the trade carried out in this unclear field without bringing any legal clarity to the matter will remain distressing for both the contracted manufacturers and exporter companies and the trademark owners.

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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