Jurisdiction: Turkey
Subject Heading: Criminal Action-Infringement of Trademark Rights
Case Name and Citation:

1- JEAN CASSEGRAIN vs. MURAT GÜRSEL AYBEK., Case No.2011/129; Decision No.2012/431 (Fethiye 3 rd Criminal Court of First Instance, Decision Date:March 23, 2012)

2- JEAN CASSEGRAIN vs..HACI MEHMET BOZDOGAN, Case No.2011/429; Decision No.2012/392 (Mugla 3 rd Criminal Court of First Instance, Decision Date:June 6,2012)

3- JEAN CASSEGRAIN vs. İSHAK BOZKURT., Case No2011/163.; Decision No.2012/13 (Fethiye 3 rd Criminal Court of First Instance, Decision Date:January 5,2012)

4- JEAN CASSEGRAIN vs. NUSRET AYKILIÇ&BULENT KARAGOZ, Case No.2011/49; Decision No.2011/327 (İstanbul 2 nd IP Criminal Court, Decision Date:July 6,2011)

5- JEAN CASSEGRAIN vs. BEKİR SITKI DOĞAN., Case No.2011/474; Decision No.2012/279 (Mugla 1st Criminal Court of First Instance, Decision Date:April 19,2012)

(The above numbered cases are based on the same facts and the decisions as summarized below are similarly motivated and the terms of convictions are similar – except for the names of the accused/convicted and the number of counterfeits.)

Defendant (accused): MURAT GÜRSEL AYBEK
Decision Date: March 23, 2012
Marks Associated with Goods/Services: Plaintiff's trademark covering goods in classes 09 / 14 / 16 / 18 / 25 / with the trademark registration no. 97/020079 “DEVICE”, and the word mark “LONGCHAMP” with the trademark registration no. 2001/20623 covering goods in classes 09/14/16/18/25 and 34.
Nature of Case: Criminal action instituted on ground of the Article 61/A of the Trademark Decree Law amended with the Law no.5833 reading “Penalties and Fines 61-(a) “Those making false declaration with respect to true identity of the trademark right holder, or those removing without authority the sign indicating a product or on its packaging, or those falsely presenting themselves as the proprietor of a trademark application right or a trademark right shall be sentenced to an imprisonment term of between one and two years and to pay a fine of between three hundred million liras and six hundred million liras, ” upon the complaint of plaintiff.
Overview of the Decision and Ruling

In the action against shop owner dealing with and selling counterfeit products(bags) carrying the trademarks “LONGCHAMP”, upon complaint filed by the plaintiff to the Public Prosecutor, the police raids effected upon his order, resulted in the seizure of 132 infringing goods in their premises upon which the Public Prosecutor instituted the criminal action against him.

The defendant (accused) asserted that the infringing goods had been purchased by his employees, that he did not know that they were counterfeit and that it did not intend to commit a criminally punishable offence.

The plaintiff having refused such assertions asked the Court to convict the accused. In its decision, the Criminal Court, ruled, on the basis of an experts’ opinion and on the basis of the evidences gathered in that the products seized in the defendant’s business premises infringe the plaintiff’s registered trademarks taking into account that by his very profession, he is in a position to distinguish counterfeits from originals and that his denial of the facts and of his intent not to infringe are not found sincere and convincing.

The court convicted the accused to:
- Imprisonment for 10 months and 4 days (80 TL) by converting it to pecuniary fine,
- The confiscation of the counterfeits seized at their premises.
- Charging the defendant to pay all the expenses for the litigation costs.
- Charging the defendant to pay the attorney fees.
Regarding the cases no.1 and 2, the courts applied the Article 61/A and mitigated the penalty on grounds of Article 62 of Turkish Criminal Code due to the positive behaviours and repentance of the accused during trial.

In accordance with Act No. 5728 amending the “ Code of Criminal Procedure “ the court further ruled to “ postpone the stating/announcing of the decision “ ( according to this provision the decision of the court will not have any legal effect on the convicted such as for including his name in the criminal records.) in the view of the fact the defendant has not committed similar offences in the past subject to the provision that he would refrain from committing any criminally punishable offence for a time period of 5 years without imposing him any further obligation/constraint or without appointing him a tutor as of Article 51 of the Turkish Criminal Code.

Importance of Case: The decisions have provided the most efficient, expeditious and cost effective way for confiscating the counterfeits and swiftly convicting the infringers considering that the criminal sanctions have also an important inhibiting effect besides providing an efficient means for combatting anti-counterfeiting activities.
Contributing Firm: Deris Attorneys At Law Partnership