a. INTRODUCTION
With the rapid growth of e-commerce in Türkiye and across the world, online marketplace platforms have become a critical arena for trademark owners. However, the swift accessibility these platforms provide and the ease with which sellers can enter the market also bring significant risks of trademark infringements. Counterfeiting, unauthorized sales, and listings that damage brand value constitute the primary types of infringements faced by trademark owners in the e-commerce environment.
In this article, the legal framework governing the liability of e-commerce platforms for trademark infringements in Türkiye will be examined.
b. LEGISLATION
- Industrial Property Law No. 6769 ("IPL")
The IPL sets out in detail the acts constituting trademark infringement; in particular, the unauthorized commercial use of a trademark and the placement of a trademark on counterfeit products are expressly prohibited. However, the circumstances under which e-commerce platforms may be held liable for such infringements are not explicitly defined in the IPL.
At this point, Law No. 5651 on the Regulation of Publications on the Internet and Combating Crimes Committed by Means of Such Publications, as well as Law No. 6563 on the Regulation of Electronic Commerce, come into play.
- Law No. 5651 on Regulation of Publications on the Internet and Combating Crimes Committed by Means of Such Publications ("Law No. 5651")
Law No. 5651 regulates the responsibilities of content, hosting, and access providers. Although marketplace platforms are not explicitly listed under Law No. 5651, they are deemed to qualify as intermediary service providers, and therefore the provisions also apply to them. Pursuant to Law No. 5651, hosting providers are not, in principle, liable for the content uploaded by third parties or for their unlawful acts.
However, under the system commonly referred to in practice as "notice and takedown," the liability of hosting providers arises once they are notified of the unlawful nature of the content. In other words, it is not acceptable for platforms to remain inactive once they have been informed of unlawful content; they are expected to take the necessary measures and remove the infringing content from publication.
- Law No. 6563 on the Regulation of Electronic Commerce ("Law No. 6563")
As a rule, intermediary service providers in electronic commerce are not directly liable for the content provided by sellers. However, if the right holder submits a complaint supported by information and documents demonstrating an infringement of intellectual or industrial property rights, the product subject to the complaint must be removed from publication, and the parties must be notified accordingly. If the seller submits an objection supported by evidence, the product may be republished. This process does not preclude the parties' right to seek remedies before judicial or administrative authorities under the general provisions.
In summary, both Law No. 5651 and Law No. 6563 stipulate that intermediary service providers cannot be held directly liable for third-party content, but they do impose an obligation to take action once notified or made aware of the infringement. Accordingly, while the legislation does not expressly impose "trademark infringement liability" on e-commerce platforms, liability may arise if they fail to act upon receiving notice of such infringements.
c. CASE LAW
In Turkish judicial practice, the liability of online marketplace platforms for trademark infringements has long been a subject of debate. Recent court decisions have begun to delineate the boundaries of this liability:
- Decision of the General Assembly of Civil Chambers of the Court of Cassation dated 15 January 2014, E. 2013/1138, K. 2014/16
The decision of the General Assembly of Civil Chambers of the Court of Cassation dated 15 January 2014, E. 2013/1138, K. 2014/16, constitutes a significant turning point in Türkiye with respect to platform liability. The Court emphasized that, considering the technical structure and functioning of the internet, an e-commerce website cannot be presumed to be inherently aware of trademark infringements committed by third parties.
Accordingly, the liability of a platform arises only if, after becoming aware of an infringement, it fails to take the necessary measures. In other words, in order for trademark infringement to be prevented and its consequences to be eliminated, the platform must first be notified of the infringement and then must fail to remove the infringing content.
In this regard, the General Assembly accepted that platforms can only be held jointly liable in cases where they act culpably (for instance, if they remain inactive despite being notified of the infringement).
This approach is considered the judicial foundation of the "notice-and-takedown" system under Turkish law. It clarifies that platforms are not automatically responsible for all acts of sellers, but they are under an obligation to take action once they have been made aware of an infringement.
- Decision of the 11th Civil Chamber of the Court of Cassation dated 16 December 2019, E. 2019/618, K. 2019/8167
The decision of the 11th Civil Chamber of the Court of Cassation dated 16 December 2019, E. 2019/618, K. 2019/8167, is an important precedent that clarifies the limits of liability of internet hosting providers in trademark infringement cases.
The case was based on the allegation that advertisements published on the defendant's website created confusion with the trade name and trademarks of the claimant company. The claimant argued that such use constituted trademark infringement and unfair competition, and therefore sought a determination of the infringement, injunctive relief, and compensation.
The court of first instance, relying on Article 5 of Law No. 5651, held that hosting providers are not under an obligation to monitor content in advance or investigate whether it is unlawful. It further noted that the disputed term had weak distinctiveness and could not be considered a well-known trademark and accordingly dismissed the case. This decision was upheld by the Regional Court of Appeal.
The 11th Civil Chamber, however, underlined that while hosting providers indeed have no prior monitoring obligation, liability arises where the trademark holder notifies the platform of unlawful content, and the platform fails to remove it within a reasonable period. The Court also emphasized that intellectual property rights are absolute rights and therefore claims for cessation and removal of infringements can be brought against anyone. By contrast, with respect to compensation, the fault of the hosting provider must be established—specifically, where it remains inactive despite being notified of the infringement.
This decision reinforces the validity of the "notice-and-takedown" system under Turkish law in relation to trademark infringements. Platforms are not automatically liable for content, but if they remain inactive despite being duly notified, they may be held directly responsible.
- Decision of the 16th Civil Chamber of the Istanbul Regional Court of Appeal dated 21 November 2024, E. 2023/433, K. 2024/1794
The decision of the 16th Civil Chamber of the Istanbul Regional Court of Appeal dated 21 November 2024, E. 2023/433, K. 2024/1794, is a recent example reinforcing the scope of liability of hosting providers in trademark infringement cases.
In the present case, the claimant alleged that its registered trademark continued to be used on certain pages of the defendant's listing platform despite a prior cease-and-desist letter, and sought the determination, prevention, suspension, and removal of the infringement, confiscation of infringing materials, and monetary compensation (including lost profits). The court of first instance found that, on pages that were not removed following the cease-and-desist letter, the claimant's mark was used in both domain names and content, that this created a likelihood of association for the average consumer, and that such use constituted trademark infringement. It accordingly held that the liability of the hosting provider arose from its failure to act despite being notified of the infringement, and partially accepted the claim, awarding damages.
Upon the defendant's appeal, the 16th Civil Chamber of the Istanbul Regional Court of Appeal ruled that the claimant sufficiently established its superior rights over its trade name and registered trademarks, that the infringing pages were not removed despite the cease-and-desist letter, and therefore that the defendant had participated in acts of trademark infringement and unfair competition. It further held that the award of monetary damages was justified.
This decision, in line with the Court of Cassation's precedents, reaffirms that hosting providers have no prior monitoring obligation, but that liability arises where platforms fail to take timely action after being notified by the right holder.
d. CONCLUSION
In Türkiye, e-commerce platforms are not regarded as entirely exempt from liability in cases of trademark infringement; rather, their responsibility is shaped within the framework of the "notice-and-takedown" principle. Case law has confirmed that while platforms are not under an obligation to monitor content in advance, they may nonetheless be deemed at fault and held liable— both for termination of the infringement and for damages—if they fail to act upon notifications received from right holders.
For trademark owners, effective protection is not limited to pursuing judicial remedies. The efficient use of internal complaint mechanisms provided by platforms plays a critical role in swiftly preventing infringements. Accordingly, right holders are advised to document the infringement, notify the platform, and, if necessary, pursue judicial or administrative remedies, which together constitute the most effective means of protection.
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.
