Recent Developments in Search and Seizure of Counterfeit Goods

In 2023, a report by the European Commission on Türkiye’s status as a candidate country for joining the European Union stated that despite strong evidence presented by rights holders, search and seizure requests were rejected and prosecutors and judges demanded unreasonable additional evidence. The report underlines the fact that Türkiye is the second largest consignor of counterfeit goods to the European Union and needs to take necessary measures to address this matter. As for Türkiye itself, demand for counterfeit products has been increasing in recent years because of the rapid depreciation of the Turkish lira and the consequent rise in inflation and the decline in purchasing power. The problems encountered in search and seizure procedures, which are the fastest and most effective solutions against counterfeit products, continue due to inconsistent practices and the demand for evidence exceeding "reasonable suspicion".

Under Turkish criminal legislation, criminal judgeships of peace are authorized to issue search and seizure orders. Within the scope of anti-counterfeiting actions, complaints are filed with the Chief Public Prosecutor's Offices which, upon examination, forward them to criminal judgeships of peace with a request for search and seizure. The Code of Criminal Procedure requires the existence of reasonable suspicion to conduct a search. Pursuant to Article 6 of the Regulation on judicial and preventive searches, reasonable suspicion is defined as the suspicion generally felt in the face of concrete events according to the course of life.

While assessing search and seizure requests, the most important evidence sought in proving reasonable suspicion is the counterfeit product and any receipt or invoice sample certifying where the product was purchased. However, businesses that sell counterfeit products consciously refrain from issuing receipts or invoices, and when they do so, it does not bear any information about the brand of the product. In such cases, it is advisable to purchase the product through a notary public. After the notary visits the store and receives the product, the product is sealed, and a notarized report is rendered. Some prosecutor's offices and criminal judges of peace require that this process be carried out by a notary public even in the presence of a receipt or invoice.

Courts might also require that an expert report be presented to back up evidence. In such cases, a report is prepared by an expert after examining the original product and the alleged counterfeit product and is added to the complaint petition. Still, some criminal judgeships of peace request law enforcement officials determine the address where counterfeit products are sold before issuing a search and seizure decision. This is considered positive in terms of providing a solution, although it causes a further delay in the search and seizure process, which is urgent in nature. Prosecutors' offices and judges are more favorable to requests for counterfeit products that pose a threat to public health, such as food or cosmetic products. Law enforcement agencies may even act against these products on their own initiative.

In 2021, the 19th Criminal Chamber of the Court of Cassation decided that it was against the ordinary course of life for the trademark owners to file a criminal complaint against a workplace which did not sell counterfeit products. In other words, it is an ordinary course of life for a trademark owner to file a complaint regarding counterfeit goods. A trademark owner would not file a complaint against a seller of original goods since it will harm their own business. Despite this decision, which is often relied upon by trademark owners, it is worrying that, in practice, evidence beyond reasonable doubt is still expected.

It is important to note that despite all these negativities, searches were conducted in many complaint files in 2023 and thousands of products were seized. Due to inconsistent practices, it is important to follow the latest decisions and monitor the conditions and evidence accepted by prosecution offices and courts. Also, since many of the products seized within the scope of smuggling are also counterfeit, it is essential to follow the procedures carried out by the smuggling units and to focus on general market research on the production and distribution of counterfeit products to identify possible targets.