Domain Name Disputes in Türkiye

28.01.2025

Contents

In a follow-up to their post on the Class 46 blog about the 81st ICANN meeting, Mutlu Yıldırım Köse and Baran Güney explore domain name disputes and online enforcement in Türkiye.

The Role of TRABIS

TRABIS (the .tr Network Information System), established by the Turkish Information and Communication Technologies Authority (BTK), became operational on 14 September 2022 and undertook the management of .tr domain names.

Upon the introduction of TRABIS, the first-come, first-served principle entered into use for the allocation of domain names such as com.tr, org.tr, net.tr, gen.tr, biz.tr, tv.tr, web.tr, info.tr, bbs.tr, tel.tr and name.tr. The obligation to submit any documents to prove the rights of the applicant was abolished.

The introduction of the first-come, first-served principle necessitated an effective dispute resolution mechanism for domain name disputes. Dispute Resolution Service Providers, which are accredited by TRABIS, have started to handle the alternative dispute resolution process regarding .tr domain names.

The regulatory rules and proceedings are in parallel to the Uniform Domain-Name Dispute-Resolution Policy (UDRP) system. The Dispute Resolution Service Providers shall decide to cancel the disputed domain name and/or transfer it to the complainant based on the choice of the complainant if the following conditions are cumulatively met:

1. The subject domain name is similar or identical to the trade mark, trade name, business name or other identifying signs owned or used by the complainant in trade;

2. The registrant of the domain name has no legitimate interests in respect of the domain name; and

3. The domain name is registered or used in bad faith by the registrant.

The alternative dispute resolution mechanism, allowing the litigation-free resolution of domain name disputes for .tr domain names, operates in an effective and beneficial manner.

Online Enforcement in Türkiye

In cases of online infringement of industrial property rights and copyright, various actions can be pursued, including civil actions, criminal actions, preliminary injunctions and notice-and-takedown procedures.

Online infringement of IP rights

The legal basis of trade mark infringement is regulated under Articles 7 and 29 of the Intellectual Property Code (IP Code). Article 29 of the IP Code states that imitating a trade mark or using a mark that is indistinguishably similar – through actions such as selling, distributing, importing or offering products – constitutes trade mark infringement.

Article 7 of the IP Code gives registered trade mark owners the right to block the unauthorised use of identical or similar marks, including online. This also applies to cases where the trade mark is used in domain names, redirect codes, or keywords that could cause confusion.

"Intermediary service providers or platforms are not liable for illegal content posted by users as per the general principle ... However, they may be held accountable if they fail to remove such content after receiving proper notice from the rights holder."

In such cases, legal action can be taken to determine if there is an infringement, to cease it and to seek both material and moral compensation.

If the conditions are met, a request for a preliminary injunction (PI) can be filed either as a standalone application or as part of the main court action and if the PI is granted the courts may temporarily block access to the relevant websites within Türkiye. These decisions are geographically limited and do not prevent the infringing content from being accessible in other countries.

In the case of trade mark infringement, a criminal complaint can also be filed under Article 30 of the IP Code. This article stipulates that individuals who engage in trade mark infringement – such as by imitating a trade mark or causing confusion through the production, sale, import or transport of infringing goods – may face imprisonment for one to three years and a judicial fine of up to 20,000 days.

Regarding notice and takedown, intermediary service providers or platforms are not liable for illegal content posted by users as per the general principle. Article 5 of the Law on the Regulation of Broadcasts via Internet and Prevention of Crimes Committed through Such Broadcasts states: “(1) Host provider is not obligated to check the content it hosts or to investigate whether it is against to law. (2) Host provider is obliged to remove the content that is against the law if it is notified according to Articles 8 and 9 of this Law.”

However, they may be held accountable if they fail to remove such content after receiving proper notice from the rights holder. We have a specific provision under E-Commerce Law No 6563 which states that platforms are required to remove the content within 48 hours of receiving a complaint accompanied by evidence of the IP violation. Failure to remove the content or republishing it after it is proven illegal may result in an administrative fine for the platform.

In 2023, an annulment application was filed to challenge the notice-and-takedown related provisions of E-Commerce Law before the Council of State and the Constitutional Court. The Council of State has suspended key provisions of the regulation, including those related to notice-and-takedown procedures.

While the annulment cases are still pending and no final decision has been made, the relevant provisions of the E-Commerce Law remain in effect. However, enforcement of these provisions under the E-Commerce Regulation has been suspended.

"Ongoing regulatory and procedural refinements are essential to ensure effective enforcement and equitable resolution mechanisms"

In cases of infringement of moral or economic rights, a lawsuit can be filed to determine, prevent, and rectify the infringement, along with claims for material and moral damages. A request for a preliminary injunction can also be made. In cases of copyright infringement, criminal action can be pursued, with penalties including imprisonment and judicial fines for violations of moral, economic, and related rights.

Under Additional Article 4, a basic notice-and-takedown mechanism is established. In cases of online copyright infringement, the rights holder must first notify the content provider and request that the infringement cease within three days.

If the infringement continues, the rights holder may apply to the public prosecutor, requesting that the service provider suspend services to the infringing content provider within an additional three days. Upon application to the public prosecutor, an expert examination is typically ordered, which can take several weeks before a decision is made on the notice-and-takedown request.

Conclusion: refinements needed

The 81st ICANN meeting underscored the importance of evolving global internet governance, particularly through advancements in the New gTLD Program and initiatives such as the Registration Data Request Service (RDRS). While these developments highlight strides toward inclusivity and accessibility, challenges such as voluntary participation and procedural inefficiencies persist.

Türkiye’s efforts in managing domain name disputes through TRABIS and addressing online IP infringements reflect a robust approach to adapting international frameworks to local needs.

However, ongoing regulatory and procedural refinements are essential to ensure effective enforcement and equitable resolution mechanisms. As the digital landscape continues to grow, both global and local measures must evolve to balance innovation with fair governance and protection of rights.


First published by Marques - Class 46 in Jan 24, 2025.

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