Protection of Work Titles

Work titles, as signs that distinguish one work from others, may also be protected independently of the work itself. Article 83 of the Law No. 5846 on Intellectual and Artistic Works (“LIAW”) provides a general framework for this protection. Although it is stated in judicial decisions that the name of the work, although it is not a work in itself, will benefit from copyright protection as a part of the work only if it emerges as an effort that makes the work effective by integrating with the work and carries the characteristics of its owner; even if this is not the case, it is underlined that in cases where confusion is created against the work title, a separate protection will be activated according to the provisions of unfair competition in accordance with the first paragraph of Article 83 of the LIAW.

The first two paragraphs of Article 83 titled “Titles and Signs” of LIAW reads as follows: “The titles and signs of a work and the shapes of the reproduced copies may not be used in another work or in its reproduced copies in a way that may cause confusion. The provision of paragraph 1 shall not apply to names, signs and external shapes that are in the public domain and do not have a distinctive characteristic.”

In this context, it is understood that the relevant unfair competition protection can only be in question in terms of work names that are not commonplace  and have a distinctive character, in other words, unfair competition protection cannot be in question in terms of phrases / signs that are available to everyone, ordinary, with low-distinctive character.

As a matter of fact, the court decisions also discuss this issue in detail and evaluate the distinctive character of the work titles each time by considering the very circumstances of each case.

For example, in a recent decision of the 11th Civil Chamber of the Court of Cassation (CoC) dated 11.09.2024 and numbered E. 2023/3879 K. 2024/6251, in the case where the plaintiff, who is a songwriter and composer, claimed that the plaintiff started to use the work title “Aşk Sana Benzer/Love Resembles You” with his album published in 2008 and identified it with himself; that the defendant had obtained unfair registration with the same phrase and that the defendant's use of the same title for a movie with a 2015 release date constituted unfair competition and infringement of copyright, the court evaluated that the expression “Aşk Sana Benzer” is one of the names that everyone uses and does not have a distinctive feature, and that it does not cause unfair competition and that the lawsuit should be dismissed. Within the scope of paragraph 2 of Article 83 of LIAW, considering that the expression “Aşk Sana Benzer” is one of the names used by everyone and does not have a distinctive characteristic, the court evaluated that it does not lead to unfair competition and the lawsuit should be dismissed and the relevant decision was upheld by the CoC.

In the same vein, within the scope of the decision of the 16th Civil Chamber of the Istanbul Regional Court of Appeals (RcA) No. E. 2017/2449 K. 2019/2091, dated 11.10.2019, in the lawsuit filed by the plaintiff against the defendant’s use of the title as a book name based on its registered trademarks and the rights to the series it produced, on the grounds of trademark and copyright infringement as well as unfair competition, the expert reports concluded that the name “Diriliş/Resurrection” is used as a book title by many local and foreign authors, and that this title is neither original nor distinctive in the sense of Article 83 of LIAW, and therefore not eligible for the protection provided therein.[1]

On the other hand, in the dispute subject to the decision of the 11th Civil Chamber of the CoC, numbered E. 2022/4102 K. 2024/204 and dated 11.01.2024, the plaintiff stated that his poem titled 'Kuzeyin Oğlu/Son of the North' was published in his book in 1983, and that the defendant began using the relevant phrase as a pseudonym on stages and TV shows, clearly based on the plaintiff's poem. Although the phrase was initially evaluated as anonymous at the first instance stage, according to the evidence presented at the appeal stage, the RcA concluded that the phrase was first mentioned in the plaintiff's poem, that the plaintiff had rights arising from ownership of the work due to the phrase being an original name with distinctive character, but that the plaintiff had lost these rights by remaining silent for a period of 6 years regarding the defendant's use and registration. As a result, the case was dismissed, and this assessment was upheld by the CoC.  Unlike other decisions, even if it is concluded that the relevant phrase has a distinctive character, it should be emphasized that protection is not granted as a “work title” under the scope of LIAW 83/2, but rather because the relevant phrase is considered capable of being protected as a work itself.

In this context, a work title, without prejudice to the cases where it is protected within the scope of copyright protection, can only be protected under LIAW 83/2 pursuant to the provisions on unfair competition. Considering judicial decisions and relevant legal regulations, it would not be incorrect to state that, in order to benefit from this unfair competition protection, the relevant title must possess a level of distinctiveness that exceeds the ordinary level.

[1]. Similar to the evaluations made in the decisions discussed so far, in its decision numbered E. 2017/351, K. 2018/320, dated 11.09.2018, the Istanbul 1st Intellectual Property Court addressed a dispute arising from the use of the title of the plaintiff’s documentary, for which the plaintiff is the registered trademark owner, as the title of the defendant's theater play. The court concluded that the relevant phrase, which carries the characteristics of the famous mystic, poet, and philosopher Yunus Emre, is a well-known and widely used phrase that has shaped societal culture. In this context, it was evaluated that its distinctiveness as a trademark is weak, and thus its scope of protection should be interpreted more narrowly.

First published by Gün + Partners in Mar 04, 2025.