Turkey: Court Of Appeal Rules On Preliminary Injunction Requests By Trademark And Domain Holders

In a recently published decision, the Court of Appeal 11th Civil Chamber ("Court of Appeal") quashed the First Instance Court's decision to decline a plaintiff's preliminary injunction request. The plaintiff claimed that the defendant's website would appear in the search results when the plaintiff's trademark and/or domain name was entered into a popular search engine. The Court of Appeal found the expert report available to the First Instance Court during determination of evidence had established grounds for granting the preliminary injunction request.

The plaintiff claimed that the defendant is infringing trademark rights by using the plaintiff's trademark as a search engine key-word. The plaintiff claimed the defendant receives more visits to its website as a result and has increased its sales, causing revenue loss for the plaintiff as well as creating unfair competition. The plaintiff sought a preliminary injunction to cease continued infringement while the court heard the plaintiff's claims.

The defendant claimed it was not using the plaintiff's trademark as a key-word and accordingly sought rejection of the action and preliminary injunction request.

The First Instance Court rejected the plaintiff's preliminary injunction request, stating that the situation requires judgment and did not fulfill the legal requirements for granting a preliminary injunction decision. The plaintiff appealed to the Court of Appeal.

The Court of Appeal quashed the First Instance Court's decision on the basis that during the determination of evidence process, the expert report indicated that when the plaintiff's trademark was typed into the relevant search engine, the defendant's website appeared in the search results. The Court of Appeal held that the circumstances met the requirements for ranting a preliminary injunction (Article 76 and 77 of Decree Law 556; Article 389 of the Civil Procedure Law).

Case reference: Yarg. 11. HD. 30.04.2013, 2013/5646 E., 2013/8568 K.

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