In a 2016 Turkish case, the Assembly of Civil Chambers clarified
the approach to interpreting evidence submitted to prove use of
service marks in non-use actions. The decision clarifies how to
prove use of service marks in Turkey for trademark owners.
The plaintiff filed a trademark application but this was
rejected due to an earlier trademark, prompting the plaintiff to
initiate a non-use action against the earlier mark. The earlier
trademark covers various goods and services, including those in
classes 37 and 43. The plaintiff claimed the trademark is used only
for retail store services and that the unused services should be
The defendant sought dismissal of the non-use action. It claimed
its trademark is used for retail store services as well as
construction services (class 37) and services for providing food
and beverages (class 43).
The First Instance Court cancelled the part of the trademark
covering "construction services" and the "rental of
construction equipment and machinery" in class 37 on the
The trademark's five-year grace
period for non-use had ended;
The expert panel found sufficient
evidence of use regarding services for providing food and
The expert panel and court found
insufficient evidence of use regarding services in class 37. The
defendant's commercial books and records include records
regarding rental of construction equipment and machinery. However,
these records were found to be insufficient to prove the trademark
is used for the services in class 37.
Case on appeal
In response, the defendant appealed against the First Instance
Court's decision. The Appeal Court reversed and remanded the
case based on the following grounds:
The submitted evidence proves the
defendant had indeed used its trademark for construction services
in class 37;
Although the defendant offers retail
store services and operates a supermarket chain, the defendant
advertised its construction services in its supermarket chain's
newsletter by publicising the building complex and mall which it
had begun building;
Invitations prepared for the
introduction of the building complex and mall clearly indicate that
construction services are handled by the defendant; and
The defendant launched a website to
promote the building complex and mall which it had begun
The Appeal Court concluded that to
prove use of a service mark, using the trademark on the building
complex and mall is not necessarily required. Therefore, using the
trademark on brochures and advertising materials was sufficient to
accept the service mark's use in class 37.
However, the First Instance Court insisted on its initial
decision, meaning the case was taken to the Assembly of Civil
Chambers. This higher court affirmed the Appeal Court's
decision and it became final.
The Appeal Court's decision clarifies questions about how to
prove use of service marks in Turkey. Evidence proving use is
varied due to the nature of service marks. However, Turkish courts
are rather strict on evaluating evidence submitted by trademark
In most cases, advertising materials and brochures are
considered weak evidence because trademark owners can prepare such
evidence at any time with respect to a non-use action. The courts
require evidence submitted by trademark owners to match their books
and accounts. Courts prefer evidence to be supported by commercial
books and records, as well as invoices bearing the trademark in
The Appeal Court's decision means it might now be possible
to overcome a non-use action in Turkey by submitting advertising
materials and brochures, as long as they show proper use.
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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