According to Article 12 of the Turkish Decree-Law pertaining to
trade marks1 (hereby the "Decree Law"), the
proprietor of a trade mark may not prevent a third party from using
his own name or other characteristics of the goods or services in
the course of trade provided that the use in question is honest and
limited to the purpose for which it was intended. This regulation
is of vital importance as Turkish Law does not provide for a fair
use exception or a due cause clause in general. In other words, the
said legal arrangement is crucial as exceptions to rights conferred
by a trade mark in Turkish Law are very limited.
The said article concerns primarily the automotive supply
industry as it may be necessary to resort to informative use of
trade marks in order to specify the goods offered and/or services
provided. For instance, a manufacturer of spare parts or a repairer
of certain brand of automobiles may need to use a trade mark
without the consent of the rights-holder.
Although the current Decree-Law does not explicitly refer to
'spare parts or accessories' as in Article 6 (1) (c) of the
Trade Marks Directive2, the implementation of the
abovementioned article is quite parallel to that of the European
As a matter of fact, the Turkish case law is in harmony with the
prominent Deenik decision3 wherein the European Court of
Justice has ruled that, the proprietor of a trade mark is not
entitled to prohibit a third party from using the mark for the
purpose of informing the public that he carries out the repair and
maintenance of goods or that he is specialized in the sale or the
repair and maintenance of such goods. However, such use shall not
create the impression that there is a commercial connection between
the other undertaking and the trade mark proprietor.
The Turkish Court of Cassation has also ruled4 in
line with the Deenik decision that, an undertaking may use the
trade mark of a third party without the consent of the proprietor
in order to identify the products and/or services offered, provided
that the use in question is not contrary to honest practices. The
Court also requires that such trade mark use shall not override the
use of the actual trade mark of the service provider undertaking.
Thereby, the Court wants to ensure that the use in question does
not give rise to an impression in the eyes of the consumer that
there is a link between two undertakings.
The Draft Law5 amending the current legislation
pertaining to trade marks will take this one step forward as the
limitation stipulated in Article 12 will explicitly include the
wording of 'accessories and spare parts'. The said Draft
Law is awaiting to be evaluated by the Members of the Turkish
Parliament, therefore the date of enactment is not clear as of yet.
However, this proposed amendment emphasizes the importance given to
the automotive supply industry in Turkey, which is known to have a
very high investment potential.
1 Decree-Law No. 556 of 24.06.1995, OG No: 22326,
2 Trade Marks Directive 2008/95/EC of the European
Parliament and of the Council of 22 October 2008 to approximate the
laws of the Member States relating to trade marks.
3 Case C-63/97, Bayerische Motorenwerke AG (BMW)
and BMW Nederland BV v. Ronald Karel Deenik [23.02.1999] European
Court Reports 1999 I-00905.
4 The Eleventh Civil Law Chamber of Turkish Court
of Cassation Case No. 2003/2346 E. 2003/8743 K. dated
5 Draft Law in regard to Amendments to Decree-Law No. 551
on the Protection of Patent Rights, Some Other Statutes and
Decree-Laws http://www2.tbmm.gov.tr/d24/1/1-0756.pdf (Only
available in Turkish) Date of Access: 16.09.2015
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