Insights Intellectual Property

The Berne Convention recognizes authors' moral rights, including the right to claim authorship and object to any prejudicial actions. However, the scope of moral rights varies in each country. Turkey, an author-centered jurisdiction, recognizes moral rights for all works, including computer programs. Authors cannot waive moral rights, but they can transfer the authority to exercise them. However, computer programs, considered technical creations, have different implementation in Turkish law. The right to claim authorship is often disregarded in the software industry. Legal scholars and precedents have taken a more flexible approach, considering the collaborative nature of software development. It is crucial to carefully draft copyright license or assignment agreements to address moral rights in the context of computer programs under Turkish law.

Turkish law provides effective enforcement procedures for protecting intellectual property (IP) rights. Cease-and-desist letters are advised, followed by civil or criminal court actions and potential customs confiscation. Specialized IP courts handle civil and criminal cases. Evidence collection involves expert examinations and search warrants. Preliminary injunctions are available. Written documents play a key role in IP litigation. Defence strategies include challenging distinctive character and prior rights. Remedies include cessation of infringing acts, confiscation, and compensation. Appellate review is possible, and alternative dispute resolution methods like mediation and arbitration are encouraged. AI-related patent ownership and changes to domain name dispute resolution are emerging trends.

Turkey is a significant jurisdiction for intellectual property (IP) law. IP cases are handled by specialized IP courts in major cities. Turkish IP law aligns with EU law and international standards, providing strong protection. Key treaties and conventions are enacted into local law. Trademarks, copyrights, industrial designs, patents, and geographical indications are protected under specific laws. Trademarks distinguish products/services, copyrights protect original works, industrial designs safeguard product appearances, and patents secure inventions. IP registration processes involve applications, examination, opposition, and registration. Protection durations vary. Recent developments include regulations on electronic commerce intermediary service providers and the launch of the TRABIS network.

In Turkey, the Industrial Property Law governs the scope and ownership of patents. It allows for the protection of various inventions, excluding certain non-inventions like scientific discoveries and computer programs. Patent ownership is determined based on the inventor, whether an employee, contractor, or joint venture. Patents can be challenged for invalidity based on grounds such as lack of patentability or exceeding the scope of protection. Monetary remedies are available for patent infringement, and injunctions can be obtained. The patent office provides procedures for prosecution, opposition, and amendment. Recent developments involve discussions on implementing provisions aligned with the European Patent Convention and clarifying practices related to service inventions and preliminary injunctions.

Patent rights can be enforced through infringement actions before specialized intellectual property courts, primarily located in larger cities in Turkey. Infringement proceedings often begin with a preliminary injunction claim and involve the collection of evidence as per Civil Procedural Law No. 6100. Compensation, destruction of infringing products, confiscation of manufacturing tools, and publication of the judgment can be requested in an infringement action. The patent infringement trial follows a structured format, including complaint submission, preliminary injunction evaluation, exchange of petitions, preliminary examination, investigation, and judgment phases.

In 2022, the Turkish Court of Cassation rendered a decision evaluating that the use of a 3D trademark as bag-locks on counterfeit goods infringed the trademark holder’s rights and the accused should have known that this 3D shape is a trademark.

We have previously reported on the Turkish Court of Cassation’s decision concluding that the Turkish Patent and Trademark Office has no authority to create and maintain a registry for well-known trademarks and discussed possible repercussions of this decision for trademark owners.

Law No. 7416, amending E-Commerce Law, came into effect on 1 January 2023, and a comprehensive change has been made to Article 9, titled "obligations of intermediary service providers", including the title of the provision.

The acts considered as infringement of trademark rights are regulated under Article 29 of Industrial Property Law no. 6769 and article 29/1(c) states that “To imitate the trademark upon using the trademark or its indistinguishably similar version without the permission of the holder; to sell, distribute, to trade in any other way, to import, export, keep for commercial purposes the products bearing the trademark used by means of violation…” constitute trademark infringement.

In 2022, the Ankara Regional Court of Appeal rendered a decision for an appeal regarding a cancellation action against the Turkish Patent and Trademark Office’s decision.

Until the Industrial Property Law No. 6769 entered into force on January 10, 2017, procedures regarding trademark rights were carried out with the abolished Decree-Law No. 556 on the Protection of Trademarks.

Özel tıbbi amaçlı gıdaların ruhsatlandırma işlemlerinde uygulanacak usul ve esasların belirlendiği Özel Tıbbi Amaçlı Gıdalar Ruhsatlandırma Yönetmeliği, 28 Ocak 2023 tarihinde Resmî Gazete’de yayımlandı.

In a recent case, the General Assembly of Civil Chambers of the Turkish Court of Cassation ruled that although the defendant argued that the earlier trade mark CERAN originates from the word “ceramic”, this is not the case and CERAN functions as a trade mark for Turkish consumers.

Regulation on the Licensing of Food for Special Medical Purposes was published in Official Gazette on 28 January 2023. The Regulation covers the procedures and principles regarding the licensing of food for special medical purposes.

The concept of the Unified Patent Court entered the lives of European Patent holders with the UPC Agreement, an international agreement dated February 19, 2013.

In a recent decision that challenges longstanding precedents, the Court of Cassation has ruled that, in cases where trademark infringement has been found, it is no longer possible to accept that the same infringing act also creates unfair competition.

The concept of plausibility – which has been the subject of numerous evaluations, especially by the European Patent Office (“EPO”) and frequently debated in academic circles in recent years – has not yet found a place within the scope of any legal regulation in Turkey.

5846 sayılı Fikir ve Sanat Eserleri Kanunu uyarınca korunan eser türlerinden biri olan sinema eserleri “her çeşit eşsiz, bilimsel, öğretici veya teknik mahiyette olan veya günlük olayları tespit eden filmler veya sinema filmleri gibi, tespit edildiği materyale bakılmaksızın, elektronik veya mekanik veya benzeri araçlarla gösterilebilen, sesli veya sessiz, birbiriyle ilişkili hareketli görüntüler dizisidir.” şeklinde tanımlanmaktadır.

Although there is no explicit provision in Turkish Law for the acceptance of the ongoing opposition or appeal proceedings before the European Patent Office as a “pending issue” due to the principle of procedural economy, in practice, pending issue decisions may be given by the Civil Courts of Intellectual and Industrial Property Rights according to the particular circumstances.

Cinematographic works, which are one of the types of works protected in accordance with the Law on Intellectual and Artistic Works numbered 5846, are defined as “works such as films of an artistic, scientific, educational or technical nature or films recording daily events or movies, that consist of a series of related moving images with or without sound and which, regardless of the material in which they are fixed, can be shown by the use of electronic or mechanical or similar devices”.