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”

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
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

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