What is Unauthorized Use of Trademark Products (Counterfeiting)?

1) Introduction: Why is “Unauthorized Use of Business Products” Important?

Healthy competition in the market depends on competitors acting in accordance with the principle of honesty . Articles 54-63 of the Turkish Commercial Code (TTK) regulate unfair competition provisions to protect fair competition. At the heart of these provisions is the unauthorized use of a business product (in short, "imitation" or "free-riding"). If a business product (design, packaging, catalog, pricing model, campaign concept, web interface, list, database, content, photo composition, store architecture, etc.) created with labor and investment is borrowed by a competitor without compensation, the imbalance in the market is inevitable.

This guide systematically explains the concept and elements of unauthorized use of intellectual property , the criteria used in Supreme Court practice , evidence strategies , types of lawsuits and claims , methods of compensation , precautionary measures , and evidence gathering practices; it also details the points of intersection with the Industrial Property Law (SMK), the Copyright Law (FSEK), and the Turkish Code of Obligations (TBK) .

2) Conceptual Framework: “Work Product” and “Free-Riding”

2.1. What is a Product of Work?

Within the scope of the Turkish Commercial Code, the term "business product" is interpreted broadly. It encompasses not only the physical product but also the total output of market presentation, including packaging/labeling , product positioning , store layout , catalog design , pricing and promotion strategy , advertising campaign concept , website interfaces/UX elements , product naming and color coding , product segments/dimensions , logistics model , lighting/composition of product photographs , influencer scenarios , and search engine optimization (SEO/SEM) .

2.2. What is Unauthorized Use (Counterfeiting)?

Regardless of whether a competitor's work, design, or trademark is registered or not, the important issue is the appropriation of another's economically valuable creative work without attribution and without compensation , thereby gaining a competitive advantage . This behavior can mislead consumers , lead to exploitation of labor in the market, and constitute unfair competition even without protection under the Copyright Law/Intellectual Property Rights Law

3) Legal Basis: Turkish Commercial Code Articles 54–63 and Intersecting Norms

• Turkish Commercial Code Article 54: Definition of unfair competition; conduct contrary to the principle of honesty.
• Turkish Commercial Code Article 55: Examples of unfair competition. Specifically, subparagraphs 55/1(a) list acts that cause confusion , are deceptive , or unjustly benefit from labor . "Unauthorized use of labor products" is embodied in these cases.
• Turkish Commercial Code Articles 56-58: Types of lawsuits (determination, injunction, removal/elimination of effects, correction and announcement), compensation and return of profits, protection of the economic interests of the enterprise.
• Turkish Commercial Code Articles 60–61: Provisional measures, evidence gathering , and time limits.
• Turkish Code of Obligations, Articles 49 et seq.: General provisions regarding torts are reflected in the calculation of compensation.
• SMK: If there is design, trademark, patent/utility model protection, cumulative/alternative protection comes into play.
• FSEK (Law on Intellectual and Artistic Works): If the work produced qualifies as a work of art, then a separate claim for financial and moral rights arises

Note: The fact that the product is not registered does not exclude unfair competition protection . Even without registration, protection is provided under the Turkish Commercial Code; this protection is based on goodwill and honesty .

4) Elements: What does the plaintiff need to prove?

1. Protected work product: An output that contains economic value and original labor ; has distinctiveness or an investment .
2. Unauthorized use: Concrete indications that the defendant quoted/transferred, adopted , or parasitized .
3. Illegality: Violation of the principle of honesty; unauthorized and gratuitous use; exploiting a competitor's efforts.
4. Causation: A link between the defendant's conduct and the plaintiff's loss of market share, damage to reputation , or unfair advantage .
5. Damage/Threat of Damage: Actual damage, loss of profit , or reputational damage; or imminent danger.

The risk of mixing is not always a necessary element. Free-riding constitutes a breach even independently of mixing, because holding onto another's investment is incompatible with honesty.

5) Fundamental Criteria in Supreme Court Practice

• Exploitation of labor and investment: Is the defendant benefiting free of charge from the plaintiff's marketing and development investments ?
• Similarity intensity and overall impression: Fragmented differences are insufficient; the overall impression is paramount. Packaging, color, typography, positioning, product name, slogan, price level, and distribution channels are all evaluated together.
• Market and timing factors: In a niche market, even small differences the mixing/exploitation effect . The chronology of the defendant's pursuit of the is important.
• The threshold of originality: Ideas are free; concrete forms/expressions are protected. Conformity to a "trend" alone does not constitute an infringement; however, a distinctive synthesis is imitated.
• Intensity and prevalence of use: Systematic and continuous use, rather than short-term trial, aggravates the violation.
• Evidence standards: Comparative collages, A/B images, dated archival records, Wayback printouts, and campaign calendars are critically important.

6) Typical Appearance Forms

1. Packaging/Label Counterfeiting: The exact copying of color blocking, typography, iconography, stripes, and visual hierarchy as a “holistic impression.”
2. Adoption of Store/Stand Architecture: Shelf layout, directional icons, wall graphic language; exact copying of the “concept”.
3. Catalog and Brochure Layout: Grid, cover design, icon set, placement of technical data tables.
4. Advertising Concept/Storyboard: Imitation of story flow, slogan, jingle, and visual signatures.
5. Product Photography Language: Lighting, background texture, product placement, post-production filters.
6. SEO/SEM Free-Riding: blog/guide content that a competitor has produced over many years, under the guise of rewriting it ; also known as "snippet hijacking".
7. Web/App UI-UX Similarities: Particularly onboarding flows, icon glossary, button placements, and spacing usage.
8. Pricing/Promotion Design: Tiered discount schedule, loyalty points architecture, "bundle" naming conventions.
9. Copying Influencer Scripts: Product narrative script, shot scales, punchline timing.

7) Evidence and Proof Strategy

• Examples of dated documents: Launch announcements, product packaging, catalogs, social media posts; records containing timestamps .
• Archival sources: Web archives, Wayback images; dated media acquisitions.
• Comparative Analysis: “Before-and-after” panels; visual collages and technical measurement charts.
• Market Impact Analysis: Sales decline, traffic shift, search volume change; correlation-causality notes.
• Expert Report: A holistic impression analysis from design, branding, marketing, UX, and photography experts
• Electronic evidence: EXIF ​​data, shipment logs, ad panel outputs; hash values.
• Evidence supporting the opinion: Customer complaints, mixing samples, call center records.
• Notary Verification/Evidence Gathering: Freezing of internet content with a verification report

8) Types of Lawsuits and Claims (Turkish Commercial Code, Articles 56–58)

1. Declaratory Judgment: A lawsuit seeking to determine that the act constitutes unfair competition.
2. Injunction (Cessation) Action: Request to stop the infringement; remove the content; terminate the campaign.
3. Referral/Effect Elimination: Recall and destruction of counterfeit products ; correction/advertisement; SEO cleanup .
4. Compensation Claim: Material damages (loss of profit, price erosion), non-pecuniary damages (reputation) – if conditions are met.
5. Restitution of Earnings: Relinquishment of net earnings obtained by the defendant ; alternative or cumulative claim.
6. Correction and Announcement (Article 58/3): misleading effects corrective clarification ; publication in appropriate media.

Competent/Authorized Court: Generally, the Commercial Court of First Instance ; jurisdiction is determined based on the tort/its effects .

9) Precautionary Measures and Evidence Gathering

• Emergency Situation: Campaigns spread rapidly; therefore, precautionary measures are critical.
• Types of measures taken: Suspension of product sales; blocking access to advertisements, social media content, and domain subpages ; stopping the display of ads for searched keywords ; removal of influencer content.
• Security Deposit: A security deposit may be required.
• Evidence Collection: Especially for online evidence , the evidence should be collected through a notary/court before the content is removed .

10) Methods of Calculating Damages and Compensation

1. Actual Damages/Loss of Profit: The profit the plaintiff would have earned if they had been able to benefit from their work/product .
2. Defendant's Profit: Return of the net profit the defendant obtained from the breach
3. Comparable License Fee (Hypothetical License): The reasonable license value that would arise if the parties had negotiated .
4. Compensation for Reputational Damage: correction/publication and moral damages .

Interest/Compound Loss: In commercial transactions, advance interest/regulated interest rates; compound effect, inflation and exchange rate effects can be considered.

11) The Intersection of the Turkish Trademark Law, the Turkish Copyright Law, and the Turkish Commercial Code

• SMK Design/Trademark: If a registration exists, claims based on SMK can be brought together with alternative/cumulative claims under the Turkish Commercial Code regarding unfair competition
• FSEK (Law on Intellectual and Artistic Works): If a photograph, graphic, catalog text, or software interface qualifies as a work , it can be used as grounds for claiming financial/moral rights infringement .
• Turkish Code of Obligations (TBK) Tort and Breach of Contract: confidentiality agreements/NDA, non-compete clauses, or know-how provisions are breached.

Strategic Note: While the Turkish Commercial Code (TTK) alone may suffice, the existence of the Industrial Property Law (SMK)/Intellectual Property Law (FSEK) strengthens the proof and scope of protection

12) Common Errors and Risks in Practice

• Lack of Record Keeping: Product development schedules, design revisions, and agency briefs should be versioned and archived.
• Focusing solely on Trademark/Registration: Unregistered elements can also a product of the business .
• Falling into the Danger of Interference: Interference is not a prerequisite for free-riding ; unfair exploitation of labor is sufficient.
• Delayed Evidence Collection: Digital content disappears quickly; immediate detection is essential.
• Wrong Expert Area: In specialized areas like UX/photography/packaging, the right expert is essential.

13) Sectoral Case Studies (Fictional Scenarios)

1. Fast-Moving Consumer Goods (FMCG): The plaintiff develops a unique combination of ribbon and color blocking for chocolate . The defendant replicates the overall impression using the same codes . While there is no allegation of mixing, exploitation of investment is evident.
2. E-Commerce Fashion: The plaintiff creates a unique lighting and background texture language in the lookbook; the defendant uses the same shooting set repeatedly. The photographs are considered works of art; furthermore, the Turkish Commercial Code's free-riding principle applies.
3. FinTech Application: Onboarding flow, icon sets, and micro-copying are exact UX replicas ; matches in the user flow are identified through holistic impressions
4. Furniture Design: Unregistered product line; defendant imitates the dimensions/proportions . Even without design registration, product protection applies.

14) Protective Measures and Adaptation Program

• Documentation: Project logs, development schedule, version notes.
• Agreements: IP address transfer with agency/supplier , confidentiality (NDA) , non-compete agreement .
• Registration Strategy: Layered protection with trademark, design, patent, and copyright registrations .
• Digital Surveillance: Brand monitoring, keyword tracking, image similarity scanning tools.
• Crisis Protocol: Identification→Warning→Request for precautionary measures→Lawsuit; ready-made templates.

15) Case Roadmap: Step-by-Step

1. Quick Preliminary Review: Similarity board, market/calendar analysis, infringement map.
2. Evidence Freezing: Notarized statement, screen recordings, product purchase/delivery document.
3. Notice and Negotiation: Suspension, inventory management, correction/announcement, and reasonable license negotiation.
4. Application for Precautionary Measures: Cessation of sales and advertising; domain/URL-focused measures.
5. Main Case: Determination-enforcement-compensation/restitution of earnings; expert opinion plan.
6. Accounting Period: Revenue, gross profit, marketing expenses, and channel breakdowns; information and document submission .
7. Application: Collection-destruction; cleaning of search results; ad/correction

Sample Warning Notice Draft (Short)

Dear Sir/Madam, In accordance with our rights to our company's [business product/packaging/concept] and our protection arising from the principle of good faith under Articles 54-63 of the Turkish Commercial Code, we have determined that your activities related to [ description ] via [URL/product code] constitute unauthorized use of our business products . We demand that you completely cease such use , withdraw the stocks from sale, remove the relevant content , and begin negotiations with us for compensation for damages/reimbursement of profits within 48 hours of this notification . Otherwise, we will file a lawsuit for preliminary injunctions and damages without any further notice. Sincerely.

19) Conclusion and Evaluation

Unauthorized use of business products is a dynamic and multifaceted form of unfair competition encountered at every level of modern marketing . The coordinated application of the Turkish Commercial Code (TTK), the Industrial Property Rights Law (SMK), and the Turkish Intellectual Property Rights Law (FSEK) , supported by rapid evidence freezing and effective countermeasures , can halt the market impact of infringement at an early stage . Strategic documentation and proactive compliance programs are the most powerful tools in preventing infringements