ABSTRACT
Bad faith in EU trademark law is regulated under the EU Trademark Regulation and related directives. According to the Court of Justice of the European Union, bad faith is an autonomous concept of EU law and must be interpreted uniformly across the Union. Although various legislative efforts continue within the EU harmonization framework, amendments to the regulations and directives alone do not ensure consistent and predictable decisions by national trademark offices or courts of member states. Therefore, Convergence Programmes are sometimes implemented to achieve a unified understanding and practice on specific issues. The general principles agreed upon within these programs are formalized under Common Practice. The thirteenth Convergence Programme, titled "Trademark Applications Made in Bad Faith" (CP13), was finalized on March 22, 2024, and the relevant Common Practice document was published. The aim of this document is to establish a common understanding of the concept of bad faith in trademark applications, reach an agreement on the terminology and related concepts, and determine the common factors to be considered when assessing bad faith. When the provisions and practices regarding bad faith in Turkish trademark law are examined and compared to the EU trademark law, it is seen that both legal systems adopt a similar approach to bad faith. However, it is also apparent that some of the regulations introduced through the Common Practice document could serve as examples for updating Türkiye's approach. Although Turkish trademark law is generally aligned with EU regulations in terms of bad faith, the lack of a guiding manual in practice sometimes leads to conflicting decisions and the absence of established standards. Therefore, it could be beneficial for the Turkish Patent and Trademark Office to prepare a similar guide based on the Common Practice document. In this article, it is revealed that preparing a similar guide will contribute to the assessment of bad faith in Turkish trademark law as well, as a result of an in depth FMR 2025/1 49 analysis of the criteria introduced by the Common Practice document by indicating the points where they overlap and differ from the bad faith practice in Turkish trademark law, in light of the regulations and precedents on bad faith in both EU trademark law and Turkish trademark law.
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First published by Ankara Barosu Fikri Mülkiyet ve Rekabet Hukuku Dergisi in May 02, 2025.
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