WHAT IS A BRAND?

Brands are signs that serve as a kind of identity for a product, enabling it to differentiate itself from other products and promote itself between the seller and the consumer. Furthermore, brands facilitate consumption by categorizing the product in various ways, making it easier for the consumer to buy what they would normally want to consume. To make a distinction, signs used to distinguish goods produced and subsequently sold by a manufacturer are called Trademarks, while signs and their derivatives used to distinguish services offered rather than products Service Marks .

Decree Law No. 556 on the Protection of Trademarks and Trademarks

Article 61 of Decree Law No. 556 regulates the circumstances under which trademark infringement occurs. According to the relevant article:

a. Using the trademark in the forms specified in Article 9 without the permission of the trademark owner.

b. Counterfeiting a trademark by using the trademark or a mark that is indistinguishable from it, without the permission of the trademark owner.

c. Selling, distributing, or otherwise placing into the market, or placing within a customs territory, or subjecting to a customs-approved process or use, or possessing for commercial purposes, products bearing a trademark that has been infringed upon by means of infringement, knowing or having reason to know that the trademark has been counterfeited by using the trademark or a mark that is indistinguishable from it.

d. Unauthorizedly extending rights granted by the trademark owner through licensing, or transferring these rights to third parties, constitutes trademark infringement.

Penalties for Trademark Infringement

The criteria for determining the penalty in cases of trademark infringement were finalized by Decree Law No. 556. According to Article 61/A, a person who produces, offers for sale, or sells goods or services by infringing on another's trademark rights through imitation or deception shall be punished with imprisonment from one to three years and a judicial fine of up to twenty thousand days.

Anyone who, without authorization, removes a trademark protection mark from goods or packaging bearing a trademark protection mark shall be sentenced to imprisonment for one to three years and a judicial fine of up to five thousand days.

Anyone who, without authorization, disposes of another person's trademark rights by selling, transferring, leasing, or pledging them shall be punished with imprisonment from two to four years and a judicial fine of up to five thousand days.

The relevant article also broadened the scope by imposing security measures specific to legal entities when the crimes defined above are committed under the guise of a legal entity.

Trademark Holder's Requirements

The trademark owner whose trademark rights have been infringed may request the following from the court (Article 62):

a. Cessation of acts of trademark infringement,

b. Remedies for the rape and compensation for material and moral damages

c. (Amended: 3/11/1995 – Article 5 of Law No. 4128) Request for seizure of goods whose production or use is punishable by law due to trademark infringement, and the means, devices, machinery, etc., used to produce these goods.

d. Granting the trademark owner ownership rights over the seized products in accordance with clause (c) (In this case, the value of the products in question is deducted from the compensation amount. If this value exceeds the agreed compensation, the trademark owner must pay the excess to the other party).

e. (Amended: 3/11/1995 – Article 5 of Law No. 4128) Taking measures to prevent the continuation of trademark infringement, in particular the request for the removal of marks from products and equipment seized pursuant to subparagraph (c) of this article, or their destruction if it is unavoidable to prevent trademark infringement.

f. The court decision against the person infringing the trademark right shall be served to the relevant parties and publicized through broadcast, with the costs borne by the infringer.

The competent and authorized court in a lawsuit to be filed due to trademark infringement

In legal proceedings initiated by the trademark owner against third parties, the competent court is the court located where the plaintiff resides, or where the crime was committed, or where the effects of the infringement are felt. In legal proceedings initiated by third parties against trademark applicants or trademark owners, the competent court is the court located where the defendant resides.

In the cases foreseen in this Decree Law, the competent courts are specialized courts. These courts operate with a single judge. The High Council of Judges and Prosecutors, upon the proposal of the Ministry of Justice, determines which of the civil and criminal courts of first instance will be designated as specialized courts and their jurisdictions. In all cases filed against the decisions taken by the Institute in accordance with the provisions of this Decree Law, and in cases filed against the Institute by third parties harmed by the Institute's decisions, the competent and authorized court is the Ankara specialized court, among the courts specified in the first paragraph of this article.

Attorney Canan Tilaver