Turkey: New Code Of Conduct Rules For Patent And Trademark Attorneys

Introduction

The new IP Code entered into force on January 10 2017 and contains provisions regarding the profession of patent and trademark attorneys.

An ad hoc regulation, which entered into force on May 18 2017 and was issued under the new IP Code, establishes the code of conduct by which patent and trademark attorneys are bound.

The new IP Code and the ad hoc regulation are set to have a major impact on the profession as they establish new rules regarding the responsibilities of patent and trademark attorneys, especially from a disciplinary standpoint.

Before the new IP Code came into force, Turkey had:

  • l no nationwide umbrella organisation covering the profession;
  • l no specific act or provision establishing such an organisation or organising the profession at a national level;
  • l no code of conduct rules for the profession;
  • l no penalties or legal basis for taking disciplinary measures against professional malpractice and misconduct;
  • l no officially recognised body or authority to penalise professional malpractice and misconduct or to enforce the professional rules of conduct;;
  • l no effective protection of the title of patent and trademark attorney (for want of legal basis);
  • l no penalties for abusive or improper use of such title (for want of legal basis); and
  • l no attorney-client privilege (for want of legal basis).

The new IP Code partly addresses the above situation as it regulates the third, fourth and fifth points. However, it leaves the rest unaddressed (ie, those relating to organising and running the profession on a countrywide basis, the protection of the professional title and attorney-client privilege).

A double-headed profession and regime

As approximately 60% of patent and trademark attorneys registered before the Turkish Patent and Trademark Office (formerly the Turkish Patent Institute) are also attorneys at law, they should be considered in two groups based on whether they are attorneys at law.

Patent and trademark attorneys wh o are not attorneys at law

Before the new IP Code and the ad hoc regulation came into force, no code of conduct rules applied to patent and trademark attorneys who were not attorneys at law. Therefore, there were neither disciplinary penalties against professional misconduct for this group nor a regulatory body empowered to enforce such penalties.

Patent and trademark attorneys registered with Bar as attorneys at law

Even before the new IP Code and the ad hoc regulation came into force, patent and trademark attorneys who were attorneys at law met most of the internationally accepted code of conduct criteria as they are bound by the Attorneyship Law (1136) and the Code of Conduct of the Union of Turkish Bar Associations and subject to the penalties thereunder through the bars they are registered with.

After the new IP Code and the ad hoc regulation came into force, patent and trademark attorneys who are also attorneys at law continued to be bound concurrently by the Attorneyship Law and the Code of Conduct of the Union of Turkish Bar Associations.

However, there appear to be no decisions indicating the applicability of the Attorneyship Law and the Code of Conduct of the Union of Turkish Bar Associations to activities performed before the Turkish Patent and Trademark Office by patent and trademark attorneys who are also attorneys at law.

New uniform rules

Until the new IP Code came into force, the fact that patent and trademark attorneys who are not attorneys at law were not bound by any rules of conduct and could not be penalised thereunder created an enormous imbalance and ambiguity in the practice, not only for patent and trademark attorneys, but also for their clients and the Turkish Patent and Trademark Office.

Under the new IP Code, all patent and trademark attorneys, irrespective of whether they are attorneys at law, are subject to and punishable by uniform rules of conduct in the exercise of their professional activity with peers, clients and the Turkish Patent and Trademark Office.

However, for some rules (eg, those relating to advertising), the solutions retained by the Code of Conduct of the Union of Turkish Bar Associations and the ad hoc regulation for patent and trademark attorneys differ considerably.

As to the 'prohibition of advertising' provided in Article 55 of the Attorneyship Law, the Union of Turkish Bar Associations Regulation on the Prohibition of Advertising of November 21 2003 (as amended on September 7 2010) explicitly rules under Article 6:5 that titles "such as 'patent attorney' and 'trademark attorney' cannot be used on the letterheads, presentation cards and other printed material".

This situation puts attorneys at law at a clear disadvantage, as they are prohibited from including their 'patent attorney' and 'trademark attorney' titles on printed materials, despite earning them through qualification exams held at the Turkish Patent and Trademark Office, which is a public body, because the use of such titles is deemed as advertising.

How these opposing solutions will co-exist and whether they can be concurrently applicable without disadvantaging one group over the other remains to be settled by case law.

Legal framework

The legal framework for the profession of patent and trademark attorneys consists of:

  • l the Law on the Establishment and Functions of the Turkish Patent Institute (5000/2003);
  • l the new IP Code (6769) of January 10 2017 amending Law 5000/2003 in respect of the profession; and
  • l the ad hoc Regulation on the Code of Conduct and Discipline of Patent and Trademark Attorneys, which entered into force following its publication in the Official Gazette on May 18 2017.

The only provision in Turkish legislation about the profession is in Law 5000/2003 concerning the establishment and functions of the Turkish Patent and Trademark Office, which, under Article 30, provides for the requirements for becoming patent attorneys and trademark attorneys and for the legal basis for the Turkish Patent and Trademark Office to organise qualifying examinations.

For this reason, Articles 181 and 182 of the new IP Code are directed to amend Article 30 of Law 5000/2003 and to introduce a new Article 30A to address the third, fourth and fifth points previously mentioned.

The first legislation for organising the profession nationally was the Draft Law for the Protection of Patents and Utility Models prepared in the 1990s by an ad hoc commission under the aegis of the then State Planning Organisation, which included an entire chapter on the organisation of patent attorneys as an autonomous body. When this law was enacted on June 24 1994 as Decree Law 544/1994, this chapter was simply removed due to the fact that the organisation of a professional body and the disciplinary penalties it provided could not be established by decree law and required an act of parliament.

Therefore, the first provision in Turkish legislation concerning the profession of patent and trademark attorneys derives from Decree Law 544/1994 on the Establishment and Functions of the Turkish Patent Institute, which, under Article 30, sets out the following:

  • l professional qualification requirements, namely:

    • ¡ Turkish citizenship;
    • ¡ legal and juridical capacity;
    • ¡ professional liability insurance in the amount determined by the Turkish Patent and Trademark Office;
    • ¡ legally domiciled in Turkey;
    • ¡ no criminal convictions;
    • ¡ at least four years in higher education; and
    • ¡ success in qualification examinations.
  • l separate qualification examinations for patent attorneys and trademark attorney;
  • l separate registers for patent attorneys and trademark attorneys;
  • l acting and representation in the name of rights holders before the Turkish Patent and Trademark Office limited solely to registered patent attorneys and trademark attorneys;
  • l distinction between attorneys who are legal or physical persons;
  • l requirement that legal person attorneys are represented by physical person attorneys;
  • l patent attorneys and trademark attorneys are subject to the mandate provisions of the Code of Obligations;
  • l persons who have served for at least three years in the Turkish Patent and Trademark Office as president, vice president, department chief, section chief, expert or deputy expert, upon leaving office, have the right to exercise the profession without sitting the qualification examinations.

Article 30 of Decree Law 544/1994 has been included in Law 5000/2003 with the same number (Article 30), without any textual modification but excluding the last paragraph concerning persons who, having served at least three years in the Turkish Patent and Trademark Office, are exempted from sitting the qualification examinations. Evidently, some former Turkish Patent and Trademark Office professionals have shifted to private practice on the basis the last paragraph.

IP Code: Articles 181 and 182

The new Article 181 repeats and replaces the earlier version of Article 30 of Law 5000/2003 by introducing additional provisions as to the representation of legal person attorneys by physical person attorneys, as well as their civil and penal responsibility, and by ruling that registration with the Turkish Patent and Trademark Office is mandatory to exercise the profession. However, it retains

the same professional qualification requirements and structural basis of Article 30 when Law 5000/2003 entered into force in November 6 2003. Even with the new IP Code, apart from redactional differences, the structural basis of this provision has remained unchanged since the first version of Article 30 under Decree Law 544/1994 back in June 1994.

The major changes affecting the profession in the new IP Code are in Article 182, which introduces a new Article 30A to Law 5000/2003. Under the new Article 30A:

  • l a new professional code of conduct is adopted as specified under the aforementioned ad hoc regulation;
  • l new penalties are adopted against breaches of professional code of conduct rules; and
  • l a new disciplinary board is established as an organ of the Turkish Patent and Trademark Office with authority to penalise breaches of professional code of conduct rules.

Code of conduct rules

The new code of conduct rules are specified under Article 5 of the ad hoc regulation. The following table compares these rules with the internationally recognised rules as of the previous situation under the repealed legislation and as of the current situation with the new IP Code and ad hoc regulation. The table also identifies the Code of Conduct Rules of the Union of Turkish Bar Associations to which patent attorneys and trademark attorneys who are also attorneys at law are bound (ie, double qualified or 'DQ').

To view the full article click here

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions