Turkey: Trademark Right Infringements On The Internet

Last Updated: 26 September 2017
Article by Sezi Demirçark

Introduction

The fact that internet usage has become a determining factor of economy due to the expanding growth of e-commerce, disputes concerning industrial property rights in the virtual platform, and trademark right infringements right to the agenda1. In this manner, Industrial Property Law No. 6769 ("Industrial Property Law") which is aimed towards the protection of registered trademarks like as previous Decree on the Protection of Trademarks numbered 556 ("Decree numbered 556") that regulates the circumstances in which the usage of marks in a virtual platform shall be considered, expressly as trademark right infringements.

This Article analyzes the circumstances in which the usage of registered trademarks on the internet is considered as a trademark right infringement within the scope of the Industrial Property Law.

The Scope of the Protection of the Mark

Article7/3-D of Industrial Property Law explains the circumstances that represent express infringements of trademark rights through the usage of the mark on the internet. Pursuant thereto, the usage of the same, or similar, mark or the dignotions that constitute the mark on the internet so as to create a commercial effect, without a legitimate connection and in the forms such as area name, routing code, key word, etc. are considered as trademark right infringements. When it is analyzed in detail, legitimate connections may be in question in the context of the rights related to agency, sales representative, and other special contracts. Without a legitimate connection, the usage of the mark could be considered as a trademark right infringement. The Supreme Court, in a decision dated 2013, decided that the usage of the internet domain name that the defendant took in connection with its trade name, which was taken previously, is based on a legitimate right related to the usage of a mark within the scope of Article 9/2-E of Decree numbered 556 (newly Article7/3-D of Industrial Property Law).

Usage of a mark, or similar thereto, in an internet domain name or on a page content could be considered as trademark right infringement if it is in a way to create a commercial effect. For example, advertising, publicity, or sale activities. Moreover, the commercial effect could exist if there is usage as a routing code, key word in the backplane, with the purpose of being noted in the top rows of search engines, or on the pages that the right holder of the trade mark is so noted2.

The lawmaker especially gives place also in the related article to the usage of the constituents of the trademark as domain name, routing code, key word, etc., and underlines that the usage of marks on the internet may represent infringements depending on the characteristics of the solid case. The usage of the sign constituting the mark, or similar thereto, as the electronic address of the web site, in other words, the domain name, may constitute infringement of a trademark right pursuant to the quality of usage, to the word included in the domain name, and to the scope of the website. Usage of the same, or the similar sign of the mark as the domain name, and in a way so as to create commercial effect, if the owner of the domain name does not have a previous right that is privileged and paramount, could be considered as an infringement of the trademark right. As a matter of fact, 11th Civil Chamber of the Court of Cassation, in its decision numbered 2010/391 E., 2011/8996 K., decided that if the internet domain name had been taken long ago, as acquiescence causes loss of right, then the action based on the trademark right infringement, and unfair competition due to usage of the domain name, will be dismissed3.

As well, the Court of Cassation states that the usage of the mark, partially or wholly, in the internet domain name does not single-handedly constitute an infringement. Pursuant thereto, in a solid case, if the defendant, in its web site, provides services that are not within the registered scope of the trademark of the claimant, no infringement will come into question. However, if the trademark in question is a well-known mark, and one of the conditions stated under Article7/3-D of Industrial Property Law exists, its usage on the internet will be considered as a trademark right infringement. (, "Even if it is the same or similar mark previously registered or applied for registration, a mark could be used for different goods or services. But, if an improper benefit can be derived due to the notoriety of the mark which is previously registered or applied for the registration or the mark can fall into disrepute or the distinctive character of the mark can be damaged, the registration application of the new mark shall be rejected even for different goods or products, on request of the right holder of the trademark which is already registered or applied to be registered."

Conclusion

Trademark right infringements are a kind of industrial property right infringements that are inevitable because of the determinant role of the internet in the world of commerce and the expansion of e-commerce. The Industrial Property Law determines the conditions of trademark right infringements on the internet as numerus clausus. Thus, the legislator aimed to define particular regulatory methods against trademark right infringements via the internet.

Footnotes

1. Çolak Uğur, Türk Marka Hukuku, 3rd Edition, İstanbul 2016 p.357.

2. Çolak Uğur, Türk Marka Hukuku, 3rd Edition, İstanbul 2016 p 459.

3. Çolak Uğur, Türk Marka Hukuku, 3rd Edition, İstanbul 2016 p 463.

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
 
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
 
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