Frequently Asked Questions

In this section, you will find our responses to the questions most frequently asked. These responses are intended to help you in choosing what course of action to follow. However, they are for information purposes only and you should not consider these responses to be legal advice. We do not accept liability for the information provided.

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1. Does the Legal ground in Turkey available to fight Fake products:

Yes, Turkey has closely followed international developments and has acceded to almost all IP-related international treaties, including the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), which aims to harmonize the legal framework on anti-counterfeiting and anti-piracy among World Trade Organization members.

Following Decision 1/95 of the EC-Turkey Association Council on implementing the final phase of the Customs Union and EU Directive 89/101, Turkey harmonized its trademark law with EU standards. Today, Turkish Trademark Decree-Law 556 and Copyright Law 5846 and related laws are in almost complete compliance with TRIPs.

 

2. What is the current situation on the annulment of some old criminal provisions of the trademark decree law in early 2009?

The decision of Turkish Constitutional Court, regarding the annulment of certain criminal provisions of the Trademark Decree Law, entered into force on January 5 2009 whereas the Turkish Parliament has not enacted the new piece of legislation, namely the Law No 5833,  until January 28 2009 which are similar to the cancelled provisions. Although the doctrine clearly stated that trademark infringers in cases commenced before January 28 2009 could be penalized as per the criminal unfair competition provisions of the Commercial Code, , the Court of Appeals has issued several decisions and set up a precedent that such trademark infringers caught before January 28, 2009 should be acquitted as trademark infringements cannot yet be punished and the unfair competition provisions are not applicable to such cases.

 

3. What are the options to fight the fake products at Turkish Borders?

Customs procedures for the protection of IP rights in Turkey are quite effective and counterfeit goods can be stopped by the submission of a general application with some addendums to Customs authorities in Ankara by the rights holder or its representative. Customs Officials directly contact the right owner or its lawyer when they come across fake products  by issuing a temporary suspension decision for ten days.

 

4. What are the ‘’ pros’’ of criminal procedure against counterfeiters?

The major advantage of criminal prosecution is that it is followed by a local public prosecutor and criminal judge *ex officio*, further to a criminal complaint filed by the trademark owner and instant action could be taken. Thus criminal  process is more  straightforward and cost effective in comparison to civil measures that could be sought against such fake products.

Moreover, The new TM criminal provisions  also introduced an immunity clause, which enables a retailer or a wholesaler  to avoid punishment by revealing the producer of  the counterfeit goods and facilitates the seizure of remainder of such goods, in other words, it could be possible to reach the actual producer by the help of criminal case against a retailer or a wholesaler.

 

5. What are the  preliminary measures that could be sought as per criminal procedures ?

When an infringer is identified as dealing with counterfeit goods, a complaint can be filed with the local public prosecutor’s office, who may then order the police to carry out a criminal search and seizure after obtaining a search warrant from the local criminal court. Police officers have the authority to search the premises and seize any counterfeit goods within the same day, without being forced to submit a letter of guarantee and etc which usually become necessary in alternative civil proceedings.

 

6. What are the remedies against counterfeiters?

The applicable remedies are  imprisonment from 1 up to years, application of security measures and fines up to TL2 million for offences laid down by the Trademark Decree-Law, and from 2 to 4 years’ imprisonment  for offences codified within the the Copyright Law. Moreover, the court may order the destruction of the infringing counterfeit products at the end of the criminal proceedings.

 

7. What can be done for the ongoing unauthorized internet commerce?

The advent of the information society and the Internet have facilitated a growing trade in counterfeit products and created new opportunities for the manufacturing and circulation of fake goods. Counterfeiters increasingly carry out their activities over the Internet, because they are able to reach consumers more easily. Moreover, the use of the Internet makes it difficult for the authorities to track them down, as it is not always easy to establish the domicile of the infringer in internet-based investigations. However, once domicile is established, it is then possible to obtain legal remedies in the normal way through criminal court proceedings.

Thus it is advisable to conduct investigations into the owners of such web-sites and at least  order a suspected product online, so as to establish whether it is authentic and to track down relevant sources.

 

8. Is it always advisable to work with a  local counsel and/or  investigators to fight counterfeit products?

Yes, when engaging in legal proceedings relating to counterfeit products in Turkey, it is essential to make at least some use of specialized local counsel and/or  investigators who are familiar with local legal rules and experienced in IP matters. Such use will help to ensure that relevant processes are efficiently dealt with, though sometimes foreign investigators could also be successful.

 

9. Which one is the most effective anti-counterfeit agency in Turkey? 

The national police force now has a special IP unit which regularly carries out raids ex officio against copyright infringers and it is possible to work with that elite squads with regard to TM infringement.

However, bearing in mind that 31% of fake products are purchased from street vendors and 38% from street markets, cooperation with the local police forces, is also crucial during the fight against counterfeiting.

Thus, regular contact and cooperation with all police departments can be a determining factor in achieving success in the fight against counterfeiters in Turkey.

Last but not the least, Customs Police and regular Customs Officers also conduct effective raids and seize bulk number of fake products during smuggling raids and good coordination with those officers also enable IP right owners to seize fake products during importation or exportation of fake products prior to distribution thereof.

 

 

1. Which transactions are subject to notification to the Turkish Competition Authority under the Turkish merger regime? 

The Communiqué No. 2010/4 on Mergers and Acquisitions Requiring Authorization of the Competition Authority (“Communiqué No. 2010/4”), entered into force on 01 January 2011, sets out the types of mergers and acquisitions that require notification the Turkish Competition Authority (“the TCA”) for permission and legal validity.

Article 5 of Communiqué No. 2010/4 defines the following transactions as a merger or acquisition:

A merger or acquisition shall arise where a change in control on a lasting basis results from

  1. A merger of two or more undertakings,
  2. The acquisition of direct or indirect control by one or more undertakings or one or more persons already controlling at least one undertaking, by means of the purchase of assets or securities or contracts or other means, of the whole or parts of one or more other undertakings,
  3. A joint venture that performs all the functions of an autonomous economic entity on a lasting basis.

The type of transaction referred to above must be notified to the Competition Board provided that the notification thresholds are met. Pursuant to Article 7 of Communiqué No. 2010/4, transactions have to be notified to the TCA for clearance, where:

  • The aggregate turnover in Turkey of the parties to the transaction exceeds TL 100 million (approximately EUR 34,4 million as of  June 2014) and the Turkish turnover of each of at least two of the parties to the transaction exceeds TL 30 million (approximately EUR 10,3 million as of June 2014); or
  • The worldwide turnover of one of the parties to the transaction exceeds TL 500 million (approximately EUR 172 million as of  June 2011) and the Turkish turnover of at least one of the other parties exceeds TL 5 million (approximately EUR 1,7 million as of June 2014)

The new Communiqué under Article 7(2) introduced a new provision to the affect that where there is no “affected market” as a result of a transaction, there will be no requirement for a notification of a concentration, with the exception of joint ventures, even if the transactions exceed the turnover thresholds. The new notification form defines this concept as a product (or services) market in which the parties have vertically or horizontally overlapping activities.

2. How is the turnover calculated within the scope of Communiqué No. 2010/4? 

Turnover comprises the net sales achieved in the fiscal year preceding the date of notification, in accordance with a uniform scheme of accounts. In addition, where there is no possibility of determining the turnover comprising the net sales achieved in the fiscal year preceding the notification, the net sales achieved as of the end of the fiscal year closest to the date of the notification shall be taken into account.  Turnover generated by sales between the persons or economic units defined under Article 8(1) is not included in the calculation of the turnover.  Article 8(6) of the Communiqué provides that when calculating turnover with respect to a foreign currency, the average buying rate in the relevant fiscal year according to the Turkish Central Bank shall be taken into account.

Pursuant to Article 8 of Communiqué No. 2010/4, the turnover of an undertaking concerned shall be calculated by consideration of the turnover of the following:

    1.   The undertaking concerned, (undertaking concerned refers to the merging parties in the case of mergers, and the acquirer or the persons or economic units subject to acquisition in case of acquisitions)
    2. Undertakings concerned with respect to which statements above the parties have the following rights or powers:
      1. direct or indirect ownership of more than half of the capital or business assets;
      2. power to exercise more than half the voting rights; or
      3. power to appoint more than half the members of the undertaking’s management board, auditory board or the representing members or
      4. power of administration of the business;
    3.   Person or economic units that have the rights or powers listed in (b) over the undertakings concerned;
    4. Person or economic units that have the rights or powers listed in (b) over undertakings in paragraph (c); and
    5.   Person or economic units that enjoy the rights and powers in (b) on undertakings listed between (a) – (d).

Other issues that should be taken into account for the calculation of turnover are as follows:

  • Article 8(3) provides that where the undertakings concerned jointly have the rights or powers listed in Article 8(1)(b) above, in calculating the turnover of those undertakings, the relevant turnover shall be apportioned equally.
  • Article 8(4) provides that where the undertakings concerned jointly enjoy rights in the administration of a joint venture, turnover of this joint venture shall be apportioned equally amongst each right owner.
  • Any two or more transactions between the same persons or undertakings occurring within a two year period shall be treated as a single concentration for the purpose of calculating the thresholds.

3. When should the notification be made? 

The Turkish Competition Act (“the Act”) or Communiqué No. 2010/4 does not contain a provision as to when a notification should be fined.

Article 10 of Communiqué No. 2010/4 provides that failure of notification, notification subsequent to realization of the transaction, or realization without the prior clearance of the TCA is subject to penalties foreseen under Article 16 of the Act.  Article 10(7) of the Communiqué defines “realization” as the date of realization of change in controlling interest.  In practice the parties are expected to file at least 30 days before the change in controlling interest.

 

4. Is the notification filed subject to any fees?

No filing fees are required for the notification.

 

5. Are the parties to a merger or acquisition required to submit the final version of the agreement?

Parties to mergers or acquisitions are required to submit the form annexed to Communiqué No. 2010/4 and the documents listed under Article 11 of the form. The notification form requires the submission of the final or the current version of the agreement regarding the transaction. Parties to transactions do not have to submit to the TCA the final version of the agreement with the notification form. It is not entirely clear yet under the new regime which stage of an agreement would fulfill the definition of “current version of an agreement”.  It is also not yet clear how the approach would be especially with respect to timelines where a filing has been made with, for example, a memorandum of understanding and where than a final agreement has been signed.

 

5. What other documents should be submitted with the notification form?  

The documents that must accompany the notification form are listed under paragraph 11 of the form. Accordingly, the parties are required to submit the following in addition to the final or current version of the agreement,

  • Documents establishing the latest accounts of the undertakings as approved by relevant official authorities,
  • Plans, market surveys and other relevant studies, if available, in relation to the affected markets, conducted by the transaction parties or third parties,
  • If a commitment is to be proposed in relation to the merger or acquisition, a signed text explaining the commitment in detail,
  • Documents establishing authorization of the notifying parties’ representative(s),
  • A copy of other (relevant) documents in relation to the merger or acquisition.

 

6. How does the decision process work? 

According to Article 10 the Act, upon the preliminary examination conducted within 15 days of the date of notification, the Competition Board shall render a decision on the notified transaction. Should the notification have incomplete information or documents, the experts may require completion of such information. The application is deemed to be filed once all required information has been completed upon which the 15 day examination period officially starts.

Pursuant to Article 10(2) of the Act, if the Competition Board does not respond to or does not take any action on the notification, the transaction is deemed to have been cleared and acquired legal validity thirty (30) days from the date of notification. The examination period referred to in the first paragraph may extend in practice, due to the aforementioned thirty (30) days period and additional information and document requirements by case handlers.

As a result of its preliminary examination, the TCA can either

  1. Prohibit the transaction
  2. Clear or clear it subject to remedies and conditions or
  3. Decide to further investigate the transaction.

In case of the latter, the TCA serves to the concerned parties its preliminary objections to the transaction and that the transaction is pending and shall not be put in force until a final decision is rendered. The investigation shall be completed within six (6) months which can be extended once for a period of up a further six months, if found necessary by the TCA.

 

7. What kinds of decisions does the TCA render on notification? 

The TCA can either

  • Clear the transaction or
  • Clear the transaction subject to conditions and/or remedies offered by the parties or
  • Prohibit the merger or acquisition on the grounds of violation of Article 7 of the Act, i.e. where the TCA finds that the transaction creates or strengthens a dominant position and significantly impedes effective competition in the relevant market

 

8. What are the consequences for the failure to notify a transaction?

According to Article 11 of the Act where a transaction subject to notification has not been notified with the Competition Board, the board may start an ex officio examination once it has been informed of the transaction.  As result of the examination:

If the Competition Board concludes that the transaction does not create or strengthen the dominant position of the undertakings concerned, as a result of which competition would have been substantially lessened in any market for goods or services within the whole or a part of the country, it will clear the transaction.  However, the parties will be fined for failure to notify.

Pursuant to Article 16 of the Act, in case of a failure to notify the parties to the transaction or association of undertakings or their members, will be fined by one thousandth (1‰) of their Turkish annual gross revenue in the preceding fiscal year, and if this cannot be calculated, gross revenue in the closest fiscal year to the decision determined by the TCA. In the case of a merger the fine is imposed on both parties concerned, whereas for acquisitions the acquirer would be fined for failure to notify.

Article 10 of Communiqué No. 2010/4 explicitly states that if agreements are notified after realization of the transaction, penalties are applicable, realization referring to realization of a change in control.

Where the Competition Board finds that the transaction does raise competition concerns according to Article 7 of the Act, in addition to administrative fines, it can decide to require those concerned to abandon the transaction, to dissolve all de facto situations contrary to the law; if possible, and in accordance with the terms and duration to be determined by the Competition Board, to return to the former owners any shares or assets acquired, or if not possible, to assign and transfer those to third parties; to ensure that the acquiring persons in no way participate in the management of undertakings acquired during the period until these are assigned to their former owners or third parties, and to take any other measures deemed necessary.

 

9. Does the TCA have the authority to on – site examinations? What would be the scope of such an examination?

Pursuant to Article 15 of the Act and Article 15 of the Communiqué No 2010/4, the TCA is entitled to conduct on – site examinations. The officials of the Competition Authority can exercise the following powers during their examination where necessary:

  • Examine the books and all kinds of documents of undertakings and obtain copies where necessary
  • Require oral or written explanations on specific subjects,
  • Examine all kinds of assets of the relevant undertaking.

 

10. Are the notifications and TCA decisions published? 

Pursuant to Article 53 of the Act, the TCA shall announce its decisions on its website without disclosing trade secrets of the parties. Article 12 of the new Communiqué provides that as soon as a notification has been made to the Competition Authority information on the notification with respect to the undertakings concerned and their fields of activity will be published at the web site.  The new notification form introduced a new question, asking the parties for the purpose of publication on the website to provide summary information without referring to business secrets with respect to the nature of the transaction, the affected markets and the fields of activities of the undertakings.

 

1. What is Foreign Capital? Which Investment Vehicles are Available to foreign investors in Turkey? 

“Foreign capital” is acquisition of wealth in a country other than the country where the investor resides. Investments in securities, such as bonds and foreign equity securities are referred to as “portfolio investments,” and are classified under the category of “indirect foreign capital investment”. Establishment of companies by foreign investors, either directly or with a Turkish partner; acquiring stocks of an existing company, and acquisition of immovable properties investment such as buildings, factories and land, or production facilities are deemed direct foreign investment. In addition, foreign capital can enter the financial markets of a country through credit markets and external loans.

Pursuant to Paragraph (a) of Article 2 of the Foreign Direct Investment Law (“FDIL”), dated June 5, 2003 and numbered 4875, published in the 17.06.2003 issue of the Official Gazette, a foreign investor is defined as (i) a real person of foreign nationality or Turkish national resident abroad and or (ii) a foreign legal entity established under the laws of a foreign country or (iii) any international institution investing directly in Turkey.

Paragraph (b) of the same article defines foreign direct investment as (i) establishment of a new company or branch, or (ii) participation in an existing company either by acquisition of shares outside the stock exchange or by acquisition of shares through the stock exchange which represent at least 10% of the capital or grant voting rights in the same proportion,

Foreign investors are entitled to bring capital in cash in the form of convertible currency purchased and sold by the Central Bank of the Republic of Turkey, stocks and bonds of foreign companies (excluding government bonds), machinery and equipment, or industrial and intellectual property rights from abroad in order to establish a new company or to participate in an existing company. They are also entitled to use dividends, earnings, receivables and other investment-related rights having financial value, or rights related to exploration and extraction of those natural resources acquired in Turkey to establish a new company or to participate to an existing company.

Foreign investors interested in establishing a new company in Turkey generally prefer to establish joint stock or limited companies, or an ordinary partnership. However, foreign investors are also permitted to establish unlimited companies, and a branch or liaison office in Turkey. It is required to obtain permission of the General Directorate of Internal Trade of the Ministry of Industry and Commerce to establish a branch of a foreign company. Besides, there are some specific procedures to be followed before the General Directorate of Internal Trade of the Ministry of Industry and Commerce.

The establishment of a liaison office provides the simplest vehicle with which foreign investors may establish a presence in Turkey. Unlike a branch office, a liaison office is not permitted to engage in any commercial activity in Turkey. However, the gathering of information, conduct of market research, translation of documents and correspondence, visiting of clients and orchestration of travel arrangements are not considered “commercial activity” and would be permissible.

 

2. Which rules apply to foreign investment?

Pursuant to Article 3(a) of the FDIL, foreign investors are free to invest directly in Turkey, and are subject to equal treatment with domestic investors, unless otherwise stipulated by law or in international treaties. Therefore, notwithstanding the restrictions set forth in international treaties and law and provided that the proposed investment is contrary to  public order, health, security and interests, sector specific restrictions previously set forth under law are not applicable anymore.

However, there are still some foreign ownership restrictions set forth under specific legislations. For example, Article 29/1(h) of the Television and Radio Broadcasting Law numbered 3984 restricts the percentage of foreign capital in a television and broadcasting company to 25%. Similar restrictions can be found in ground services regulations for civil aviation; the Cabotage Law regarding maritime security, the Auquacultural Resources Law numbered 1380, and the Electricity Market Law numbered 4628.

Pursuant to Article 3(b) of the FDIL foreign investments can be expropriated or nationalized only for the purpose of the protection of public interest in return for compensation.

As per Article 3(c) of the FDIL, foreign investors are free to transfer abroad (i) the net profits and dividends generated from commercial activities and transactions conducted in Turkey, (ii) proceeds resulting from the sale and liquidation of all or any part of the investment in Turkey, (iii) payments made under license, management and similar agreements and (iv) interest and reimbursements arising from foreign loans, through banks or private financial institutions.

Pursuant to Article 3(e) of the FDIL, foreign investors are entitled to apply either to authorized local courts or national and international arbitration to settle any disputes arising from both investment agreements subject to private law and public service concession contracts.

 

3. Which Rules Apply to the Acquisition of Real-Estate by Foreigners in Turkey? 

As per Article 3(d) of the FDIL, companies established in Turkey by or associated with foreign investors are free to acquire the title or limited real rights of an immovable property located in those areas which are open to Turkish citizens. Foreign investors and Turkish citizens are treated equally in terms of acquisition of immovable property in Turkey.

It is important to note that Article 3 (d) of the FDIL regulates acquisition of an immovable property by those companies established by foreign investors or those in which foreign investors are shareholders. Acquisition of real estate by foreign individuals and/or legal entities is subject to the Title Deed Act dated 1934 and numbered 2644 (the “TDA”).

Pursuant to Article 35 of the TDA, provided that the mutuality criteria and legal requirements have been met, foreign real persons are permitted to acquire immovable property that has been properly defined and registered as a place of business or residence in the implementation plan or local development plan of the city prepared by the relevant municipality. The same conditions apply to foreigners who wish to acquire limited rights in rem on an immovable property. However, the ownership of immovable property and limited rights in rem to be acquired by a foreign individual in Turkey shall not exceed 2,5 hectares in total.

The total area of the immovable property to be acquired or be made the subject of limited rights in rem by all foreign individuals shall not exceed 10% of the total area of the piece of land covered by the implementation plan or local development plan of the relevant central district or town. However, taking into account the importance of central districts and towns in terms of their infrastructure, economy, energy, environment, culture, agriculture and security, the Turkish Council of Ministers is empowered to determine a different rate which shall not exceed 10%.

As per Article 36 of the TDA, companies established by or associated with foreign investors in Turkey are permitted to acquire the title or limited rights in rem on an immovable property to conduct the business indicated in their articles of association. The same conditions apply to immovable properties transferred to another company established in Turkey with foreign capital, as well as any company originally established with national capital and subsequently transformed into a foreign-owned company through share transfer.  Pursuant to the Law on Military Forbidden Zone and Military Security Zones, acquisition of immovable property in military, security and strategic zones by these companies is contingent upon the approval of the Office of the Commander-in-Chief or the authorized command post. Acquisition of immovable properties located in special security zones is  subject to the approval of the province where the immovable property is located.

1. Are foreign plaintiffs who wish to initiate legal proceedings in Turkey subject to any bond requirements? 

Pursuant to Article 48 of the International Private and Civil Procedure Law dated November 27, 2007, and numbered 5718 (the “IPCPL”), foreign persons or legal entities who initiate legal or execution proceedings are required to deposit a guarantee that will be used to bear the judicial expenses as well as to compensate the counterparty for damages, if any. However, if there exists an applicable reciprocity agreement between Turkey and the foreign plaintiff’s country of origin, the court may exempt the party who initiated the legal proceedings from such payment.

(For the list of the Convention Countries exempt from the bond requirement, please see://www.uhdigm.adalet.gov.tr/yedek/b2-sozlesmeler/sozlesmeler/03-laheysozlesmeleri/laheytaraflar.xls.). 

 

2. Does Turkey require that foreign court decisions be domestically ratified to be recognized?    

An award rendered pursuant to legal (civil) proceedings initiated in a foreign country that becomes final under the laws of that country can be enforced in Turkey only in the case of an exequatur decision rendered by the competent Turkish Civil court. If the parties to a matter request that the foreign decision become enforceable in Turkey, a lawsuit regarding the exequatur request should be filed with the Turkish courts.

The conditions of the exequatur are regulated under the International Private and Civil Procedure Law (the “IPCPL”). Pursuant to the IPCPL, the conditions under which the exequatur request can be filed are as follows:

  1. The existence of an agreement based on the reciprocity principle concluded between Turkey and the country in which the foreign decision has been rendered, or a legal provision or a de facto application of that country that enables the enforcement of the awards rendered by Turkish courts;
  2. The foreign decision shall not be rendered on a dispute under the exclusive jurisdiction of the Turkish courts; or, (provided that the defendant has opposed the decision) the decision shall not be rendered by a court which is considered to have jurisdiction though in fact the decision does not actually relate to the parties or to the subject of the lawsuit;
  3. The decision shall not be in explicit contravention of the principles of Turkey’s public order;
  4. If the person against whom the exequatur request is requested has not been duly invited to the court according to the laws of the country where the decision is rendered; or if he has not been represented therein, or that the decision has not been rendered unlawfully in his absence as stipulated by the provisions of the applicable laws of that country and that person has not opposed the exequatur request before the Turkish courts, on these same grounds.

Please also note that the conditions above must be met if a foreign decision is to be recognized by the Turkish courts, except for the condition regarding the presence of “a reciprocity agreement concluded between Turkey and the country in which the foreign decision is rendered; or a legal provision or a de facto application of that country enabling the enforcement of the awards rendered by Turkish courts,” namely the applicability of the reciprocity principle.

For the list of the countries that have concluded reciprocity agreements with Turkey, please see: http://www.uhdigm.adalet.gov.tr/ts.htm

 

3. Does Turkey require that foreign arbitral awards be ratified in order to be recognized?  

Foreign arbitral awards that are final and executive, or are binding upon the parties concerned, must be ratified in Turkey. However, foreign arbitral awards can only become enforceable in Turkey if an exequatur decision is obtained.

The Turkish court with the appropriate jurisdiction can dismiss an exequatur request if:

  1. No arbitration agreement has been concluded between the parties, nor has an arbitration clause been enclosed in the main agreement;
  2. The arbitral award is deemed contrary to public morality or order;
  3. The dispute, to which the arbitral award is subject, cannot be solved through arbitration according to Turkish law;
  4. One of the parties has not been duly represented before the arbitrators and has not explicitly accepted any subsequent arbitration transactions;
  5. The party against whom the exequatur request for the arbitral award has been made has not been duly informed regarding the assignment of the arbitrators, or has been deprived of the right to a prosecution and defence;
  6. The arbitration agreement or the arbitral clause is considered to be null and void according to the law upon which the parties have agreed; or according to the laws of the country where the arbitral award is rendered, if the parties have not agreed on the applicable law;
  7. The assignment of the arbitrators or the arbitration procedure has not been conducted in accordance with the agreement signed by and between the parties; or, in accordance with the laws of the country where arbitral award has been rendered, if such an agreement has not been concluded by the parties;
  8. The arbitral award is pursuant to a matter not foreseen under the arbitration agreement or the arbitral clause, or exceeds the scope of such agreement or the clause, in which case the court will dismiss the exequatur request for the part in excess only;
  9. The award has not become final, binding or executive in accordance with the laws of the country in which the award has been rendered, or has been cancelled by the competent authority of the county in which the award was concluded,

If any one of the above conditions is met, the exequatur request will be dismissed by the court.

The recognition of the arbitral award is subject to the same provisions as the provisions concerning the exequatur decision.

 

4. What is the legal procedure that has been provided for debt collection? 

Under Turkish Law, the creditor can directly initiate execution proceedings at the execution offices without being required to submit any court decision for the collection of his pecuniary and deposit debts. Pursuant to the Execution and Bankruptcy Law, in order for the creditor to initiate such proceedings, a court decision or any other document (deed) is not required. However, proceedings initiated in such a manner will only be successful in the case that the debtor does not oppose the proceedings. If the debtor files an opposition within the allotted time period, the execution proceedings will automatically cease.

It is incumbent upon the creditor to reactivate the ceased proceedings, which can occur in any one of the following ways whereby the cancellation/removal of the opposition can be sought by filing a lawsuit to remove the opposition before the execution court with appropriate jurisdiction or by a lawsuit to cancel the opposition before the civil court having jurisdiction. Provided that the debt is proven valid by the creditors, in those proceedings the courts will cancel/revoke the opposition and decide for the continuation of the execution proceedings. Furthermore, in cases where the necessary conditions are met, a compensation decision for the denial of the execution proceedings corresponding to 40% of the debt can be issued against the debtor.

 

5. Is litigation in Turkey subject to any specific expenses? 

Fees for judiciary services are subject to expenses the types, rates and the amounts of which are regulated by the Law regarding Fees numbered 492. Judiciary expenses typically are divided between, the application fee and the decision and judgement fee.

The application fee is a fixed fee obtained from the applicant in advance as a condition of filing the lawsuit. Depending upon the nature of the application, the decision and judgement fee can be either fixed or proportional. Matters that cannot be determined monetarily are subject to a fixed decision and judgement fee, while the subject of a lawsuit and action that can be determined monetarily and a lawsuit and action regarding a sum of money are both subject to the relative decision fees and judgement fees in proportion to the amount in question.

Fixed fees are collected in advance, before the relevant action occurs. One quarter of the relative decision fees and judgement fees is collected in advance, and the remaining three-quarters of the amount is collected once the decision has been rendered. In the case that a lawsuit is dismissed the fixed decision and judgement fees will be collected even though the lawsuit has been subject to the relative decision and judgement fees. Therefore, in case a lawsuit subject to the relative decision and judgement fees is dismissed the remaining amount of the relative decision and judgement fees (which was taken in advance) after deducting the fixed decision and judgement fees will be refunded.

Pursuant to the current legislation, the rate of the relative decision and judgement fees is the 0.594 % of the requested amount.

For detailed information regarding the expenses and rates please see:

http://www.kazanci.com/cgibin/highlt/ibb/highlight.cgi?file=ibb/files/tc492.htm&query=492 sayılı harçlar#fm

6. What are the principles guiding employment of foreign nationals in Turkey?

The requirements of foreign employment and the principles regarding work permits for foreign personnel are regulated under the Law regarding Work Permits for Foreigners numbered 4817 (the “LWPF”). Unless it has been otherwise provided for by the multilateral or bilateral agreements to which Turkey is party, foreign nationals are required to obtain a work permit before beginning to work independently or dependently in Turkey. A foreigner residing outside Turkey shall apply for a work permit with the Turkish representative offices in the country of residence or origin. The representative offices will convey such applications to the Turkish Ministry of Labour and Social Security (the “Ministry”) directly. The Ministry evaluates those applications by taking the views of the relevant authorities, by taking the conditions set forth by law into account and grant the requested work permit should the foreign national be deemed suitable. This permit will only become valid if a working visa and a residence permit are also obtained. A foreign national to whom a work permit has been granted shall apply for an entrance visa within ninety (90) days of obtaining the work permit, and shall apply to the Ministry of Internal Affairs for a residence permit within thirty days of entering Turkey. Foreign nationals with a valid residence permit or their employers can also file an application regarding work with the Ministry from within Turkey.

According to the “Passport Law” numbered 5682 and “The Law on Residence and Travel of Foreign Nationals” numbered 5683, once foreigners have entered Turkey legally, they must obtain working visas, work permits and residence permits in order to begin to work in Turkey. Furthermore, the work that the foreign national wishes to perform out shall not be forbidden under Turkish legislation.

Provided that the provisions of the relevant regulations are reserved and the period granted by the permit does not exceed one year, foreign nationals who will provide professional services can be granted a provisional permit until the principal permit for such academic and professional business is finalized. The work permits are granted and extended in accordance with the provisions of the relevant laws and regulations, upon the written application of the foreign national with a residence permit or the employer.

The above reserves those provisions of any laws restricting the jobs and professions in which foreign nationals can be involved.

Apart from the above-mentioned information, as per Article 13 of the LWPF, the Ministry of Labour and Social Security has published evaluation criteria applicable as of August 2, 2010.  According to said document, at least five Turkish nationals must be employed for every one foreign national in the place of work for which the work permit for the foreign national is requested. In the case that the foreign national who requires a work permit is a shareholder of the company, this requirement will be applicable only for the last six months of the year for which the work permit has been granted. If there is to be more than one foreigner employed in the same place of work, the requirements regarding the employment of five Turkish nationals will be applicable for each foreign employee employed after the first foreign national. However, if the area in which the foreign personnel is employed requires a particular degree of expertise or proficiency, or if the company in which the foreign personnel will be employed is in the tourism or entertainment sectors and already employs at least ten Turkish nationals, no further quota will be applied.

For further information please see:

http://www.csgb.gov.tr/csgbPortal/csgb.portal?page=duyuru&id=duyuru13

1. Which regulatory body is responsible for the supervision of the insurance and reinsurance industry in Turkey?

The insurance regulatory agency in Turkey is the General Directorate of Insurance of the Undersecretariat of the Treasury.

2. What is the relevant legislation governing insurance regulatory matters and insurance contracts?

The framework of the regulation of the insurance sector is provided by the Act on Insurance, Number 5684, introduced on 14 June 2007, as a result of the emerging needs of the rapidly growing sector for international standards, such as more effective supervision and transparency, compliance with European Union (EU) standards. Secondary legislation has and is being replaced accordingly.

Insurance contracts are governed by the Insurance Section of the Turkish Commercial Code of 1956.  A new Commercial Code introducing substantial improvements to insurance provisions was introduced on January 13, 2011 and will enter into force as of July 1, 2012.

3. How can an insurance company operate in Turkey? 

An insurance company in Turkey can only operate in the form of a joint-stock company or, in the case of mutual insurance funds, a cooperative company. The establishment of a joint-stock insurance company is generally subject to the rules for the establishment of a joint-stock company as set out in the Commercial Code, with certain exceptions and further requirements as to form and procedure. Insurance companies can only engage in insurance business and the other businesses which are directly related with the insurance business.

4. Are there any licensing requirements for the operation of insurance companies? 

Upon establishment, an insurance company is required to obtain a license from the Undersecretariat of the Treasury for each insurance field the company is going to operate in. An insurance company is not allowed to be active in both life and non-life insurance divisions.

5. Is there any capital requirement for insurance companies operating in Turkey?

The minimum paid share capital of an insurance company must be YTL 5 million paid in cash. The Undersecretariat of the Tresury is entitled to raise the amount at the stage of licensing depending on the extent of licensing requests of the company.

6. Are foreign insurance companies admitted to operate in Turkey?

Foreign insurance companies may operate in Turkey through establishment of a company in Turkey or thorough acquisition of shares in an existing company. In the first option the new company would be a Turkish company incorporated with foreign capital.  Foreign insurance companies may also operate in Turkey by opening a branch office.  Unlike liaison offices, which are not allowed in case of insurance companies, a branch office may engage in commercial activities. The general directorate of the Ministry of Internal Industry and Commerce is entitled to issue the permit for opening a branch. The amount of paid-up capital of these companies cannot be less than the amount determined for the insurance and reinsurance companies established in Turkey. Besides, these companies should not be prohibited from carrying on insurance business in the countries where they originally operate.

7. Are Turkish residents allowed to insure their insurable interests abroad? 

Turkish residents must insure their insurable interests in Turkey with an insurance company admitted in Turkey. The Insurance Act provides following exemptions, the scope of which the Council of Ministers is authorized to expand:

  • Freight insurance for import and export goods;
  • Insurance to be provided for aircrafts, ships, helicopters which are purchased with foreign loans, exclusively limited to the loan amount and applicable for the term until the foreign debt is paid up, or limited to the period of financial leasing if the same are brought home by financial leasing obtained abroad;
  • Liability insurance with respect to operating of ships;
  • Life insurance;
  • Personal accident, sickness, health or motel vehicle insurance, limited to the time of the insured’s stay abroad or their temporary stay abroad.

 

8. What are the requirements for the formation of an insurance contract? 

Formation of an insurance contract is not subject to any formal requirement for validity but to the general rules of contract formation provided by the Turkish Code of Obligations. As a result insurance contracts are concluded upon the parties’ mutual declaration of intention. Contracts above TL 590.-  are however subject to written form for purposes of proof with respect to the existence, scope and content of the contract.

The Commercial Code requires the insurer to issue a policy setting out the mutual rights and obligations accompanied by general conditions confirmed by the Undersecretariat of the Treasury and signed by the insurer. This is, however, not condition for validity but rather a regulatory requirement for the protection of the insured.

 

9. How is the scope of an insurance contract determined? 

Insurance contracts are in principle subject to freedom of contract. The parties are free to determine special conditions subject to the mandatory and semi mandatory rules provided by the Turkish Commercial Code. The special conditions must not be contrary to the general conditions approved by the Undersecretariat of the Treasury for relevant insurance types to the extent general conditions reflect mandatory or semi mandatory rules.

 

10. Are the parties to an insurance contract free to choose a foreign jurisdiction in their insurance disputes? 

The Turkish Code of International Private Law numbered 5718 has designated specific jurisdictions for the cases arising from insurance contract disputes, and clearly states that they cannot be contracted otherwise by the parties. Article 46 of the Code provides that the relevant jurisdictional rules shall prevail:

The court where the insurer’s headquarters, or its branch office or the agent who concluded the contract are located in Turkey, has jurisdiction in the disputes arising from insurance contacts. In the cases to be filed against the insured or the beneficiary, the court of the Turkish domicile of these persons has the jurisdiction.

 

11. Are the parties to an insurance contract permitted to chose a foreign applicable law to disputes arising from that contract?

The parties to an insurance contract are permitted to choose a foreign law to be applicable to that contract. The Turkish Court of Appeal has not found the presence of a foreign element required for the selection of a foreign law to be used for the resolution of any potential dispute.

 

12. Are the parties to an insurance contract permitted to agree upon an arbitration clause in the event of any potential dispute? 

The parties to an insurance contract are permitted to agree on submission of disputes to ad hoc or institutional arbitration.

It is also possible to refer to “expert arbitrator” whereby the parties to an insurance contract agree on the determination of the loss arises within the scope of the insurance contract as a result of an examination to be conducted by an expert arbitrator. The conclusions of such an examination would be binding on the courts as well as between the parties who agreed on expert arbitration.

An insurance arbitration commission was established in 2007 by the Turkish Association of Insurance and Reinsurance Companies and operating since on various insurance disputes.

13. Does competition law apply to insurance companies? 

The Act no 4054 on the Protection of Competition also applies to the insurance sector. A Block Exemption Communiqué regarding the insurance sector parallel to EU Commission Regulation 358/2003 of 27 February 2003 was published in the Official Gazette on 1 February 2008 and is in force.

 

1. What is the regulatory status of Pharmaceuticals in Turkey?

Pharmaceuticals cannot be offered for sale without obtaining marketing authorization in Turkey. The General Directorate of Pharmaceuticals and Pharmacy of the Ministry of Health is the related authority to grant marketing authorization. Along with the obligation for marketing authorization, there is also the obligation to apply to the General Directorate of Pharmaceuticals and Pharmacy of the Ministry of Health and obtain a price. A reference price regime is implemented in Turkey with regard to pharmaceutical pricing. Pharmaceuticals can be offered for sale only in pharmacies, there is no OTC system in Turkey and it is forbidden to promote pharmaceuticals to the general public.

 

2. Can pharmaceuticals be subject to parallel import in Turkey?   

Pharmaceuticals can only be imported to Turkey by the marketing authorization holders and the customs clearance certificate is issued in the name of the marketing authorization owner. In this regard, it is not possible that pharmaceuticals are subject to parallel import and it is not allowed that any other person other than the customs clearance certificate owner clears the pharmaceuticals from customs.

 

3. Is there a pharmacovigilance system in Turkey?

Yes there is. The pharmacovigilance related activities are conducted by the Turkish Pharmacovigilance Center (TUFAM) in line with the “Regulation Regarding Monitoring and Assessment of Human Medicinal Products”, “Pharmacovigilance Guideline”, “Guideline on the Conduct of Pharmacovigilance Audits” and “Guideline on the Reporting of Pharmacovigilance Audits”. TUFAM related information could be obtained from: http://www.iegm.gov.tr/Default.aspx?sayfa=tufama&lang=tr-TR

 

4. Are clinical trials allowed in Turkey?

In Turkey, the Clinical Trial issue has long been perceived as a regulatory issue under the authority of the Ministry of Health in Turkey. As a result of such perception the first legal texts regulating clinical trials in Turkey were the Regulation on Drug Clinical Trials dated January 29, 1993 and the Guideline on Good Clinical Practices dated December 29, 1995 which were issued by the MoH. This administrative legislation was amended with the Regulation on Clinical Trials dated December 23, 2008. The Guideline on Good Clinical Practices which is based on the Regulation on Clinical Trials has been subject to numerous changes during the past years (due to the purpose of harmonization with the EU directives).

Following the enactment of the Regulation in 2008, it was argued that some of the provisions did not have a proper legal background and these arguments were carried before the Council of State for examination along with the request of cancellation of the related provisions of the Regulation. During the trial, it was revealed by an interim review decision of General Chamber of the Council of State that there was no legal basis for the enactment of the Regulation by the Ministry of Health as there is no law giving such authority to the Ministry of Health.  After a long and debated trial period the action is finalized and it is decided that there is proper legal background for the Regulation be implemented, however, some of the provisions were cancelled. However the argument that clinical trials did not have proper legal background pushed the authorities to enact a law for the sake and continuation of clinical trials in Turkey. In this regard, Additional Article 10 is added to the 3359 numbered Fundamental Health Services Law on April 6, 2011. Despite the fact that clinical trials gained a proper and legitimate basis with this Additional Article 10, since it is quite a concentrated article and there are still matters to be interpreted especially in relation to liabilities of the actors.

 

5. Can pharmaceutical wastes be imported to Turkey or exported from Turkey?

As per the Environment Law, wastes cannot be imported to Turkey. In order to provide an accurate evaluation about this matter, the waste related legislation shall be examined as a whole.

 

6. How are cosmetics regulated?

The Ministry of Health is the related authority for cosmetics. Cosmetics are not subject to any license or authorization procedure but a notification system is adopted. The notification is made through the internet in line with the related Guidelines of the Ministry. Self-control system is adopted for cosmetics, the cosmetic manufacturer is liable of the security of the product and the accuracy of the notifications made to the Ministry. However the Ministry of Health can always conduct audits. It should be noted that cosmetics products should not be introduced with health claims and be compatible with the packaging and labelling rules which are strictly regulated.

 

7. Are there any specific regulations with regards to the importation and presentation of food materials in the market?

In Turkey, the specific regulations on food importation and its presentation to the market are set out by the Law no. 5996 and the related regulations. Also, the responsibilities of producers and importers during the period between the importation of foods and their presentation to the market have been regulated in relevant legislation comprehensively. In addition to these, there is a private communiqué regarding labelling and packaging of food materials.

8. How are the advertisements of food materials and cosmetics regulated?

The general principles of advertising are regulated by Consumer Protection Law and the Regulation on Commercial Advertisements and Announcements. According to such regulations, the claims in the advertisements should be true and should not be misleading. Besides, the claims in the advertisements should not cause unfair competition in the market. Since labels and packaging materials are also deemed as advertising materials, such materials also need to be in accordance with the advertisement regulations.

For the advertising of food materials, it is of great importance that the information with regards to the ingredients of the food should be true and should not be misleading for the consumers. Regarding the cosmetic advertisements, there should not be any claims within the ad indicating the cosmetic product can diagnose and/or cure a certain disease.

 

9. Are there any specific regulations protecting the consumer rights and setting out product liability in Turkey?

In Turkey, consumer rights are protected by Consumer Protection Law as well as the related regulations issued by basing on the Consumer Protection Law.

The product liability and its legal effects have been set forth in the Consumer Protection Law numbered 4077 and the Regulation on the Liability Arising From the Damages Due to the Defected Good”. The “product liability” should be understood as the liability for the damages following the effects of defected good/service (such as death, injury or the other damages in respect of the other goods/services in use). In line with the general principle of the Code of Obligations, subject to some exceptions the burden of proof is on the consumer for any compensation claims whereas the consumer should prove the damage resulting from the defect/defects.

 

1. Is there an obligation to use a patent granted or validated in Turkey and if yes, what are the consequences of not using it?

Article 96 of the Decree-Law No.551 on Protection of Patent Rights (“Patent Law”) reads as follows:

Obligation to Use

Article 96 :

The patentee or the person authorized by him is under obligation to put to use, the invention under patent protection. The obligation to put to use must be realized within three years as from the date of publication in the relevant bulletin of the announcement related to the issue of the patent.

Market conditions are (to be) taken into consideration when/for assessing the use.

Evidence of Use

Article 97 :

The patentee or the person authorized by him shall prove his use of the invention by an official document to be filed before the Turkish Patent Institute. The official document attesting the use of the patent shall be established according to the general criteria and rules foreseen in the Regulation by the authority designated therein.

The document (of use) is issued at the conclusion of the inspection of the production in the industrial premises where the invention is being put to use/worked. The document (of use) shall confirm the fact that the patented invention is being implemented or that the (goods) object of the invention is offered for sale.

The document (of use) must be prepared within three months as from the date of filing the relative application before the concerned authority. The document shall cover the data relative to the actual/effective use of the patented invention.

The certificate of use is entered in the Patent Register.

As a practical note; the official document mentioned above can be in a form of import certificate such as a custom declaration approved by the Turkish Customs indicating that those products have been imported to Turkey. If the use of the patent is not proved in 3 years, this does not directly result in the loss of any rights. However, the patent may become open to compulsory license requests from 3rd parties. In this case, a compulsory licensing request must be addressed to a court and the patent owner can always prove to the Court that the patent is being used in Turkey.

 

2. If employees’ inventions are entitled to remuneration from their employer in Turkey, does the duty of remuneration remains if the inventor has left the company?

According to Article 17 of the Patent Law, service inventions are those inventions which are made by the employee during the term of his employment, while performing, as of his obligation, the task he has been assigned to or which are based to a great extent on the experience and activity of the company. Employee’s inventions which do not fall under the scope of service inventions are deemed to be free inventions.

An employee having made a service invention is under the duty to report, without delay, the invention to his employer, in writing. The employer shall, within two months as from the date of receipt of the employee’s report, inform same of the corrections he deems necessary to be made therein. If the employer fails to request for the correction of the report, the report is deemed to be legally valid.

An employer may claim a right, in part or in whole, for a service invention. The employer must notify the employee of his claim, in writing. Such claim must be made within four months as from the date of receipt by the employer of the employee’s report. Where the employer claims ownership in whole on the service invention, with the notification of the claim in writing to the employee, all rights on the service invention pass to the employer and the employee qualifies for a reasonable compensation as against the employer.

According to Article 37 of the Patent Law, the rights and obligations arising from provisions concerning employee’s inventions are not affected by termination of the employment relationship. Therefore the duty of remuneration remains even if the inventor has left the company. There is no time foreseen in the Patent Law by when the employer’s duty of remuneration will end. This follows that the two-month and four-month notification periods of which the employee and the employer must obey in order to obtain remuneration and acquire the right of the invention, may run and the employer’s duty of remuneration may remain even after the termination of the employment contract.

 

3. Preliminary injunctions – what are the criteria for grant?  What is the appeal process of any preliminary injunction?

According to Article 151 of the Patent Decree Law, the persons who have commenced or will commence legal proceedings under the Patent Decree law can request for a grant of a preliminary injunction in order to ensure the effectiveness of the (main) action, on conditions that they bring evidence as to the existence of actual use in Turkey of the patent or serious and effective preparations to use the patent in question. Moreover, according to Article 103 of the Civil Procedural Law, each of the parties to proceedings can apply to the Court during ongoing proceedings or before such proceedings has been commenced for a preliminary injunction order to be granted. The preliminary injunction requests are accepted when any delay might cause irreparable and significant damage. If the patent owner applies to the IP Court for the determination of evidence, the provisions of the Patent Decree Law, which compared to the Civil Procedural Law provisions have priority in application, will be applicable.

The success in a preliminary injunction request is totally dependent on the quality of evidence.

The party against whom a preliminary injunction is granted can oppose to the preliminary injunction order. If an action on merits had been filed before such an opposition, the opposition is dealt with by the court which deals with the main action.

 

4. Which regulatory provisions exist with regard to data exclusivity for data submitted with an application for a marketing authorisation for a medicinal product?  

Article 9/3 of the Regulation on the Licensing of Medicinal Products for Human Use provides for data exclusivity for data submitted with an application for a marketing authorisation for a medicinal product. It provides that:

“The data exclusivity period shall apply on the original products for which no generic registration application has been submitted in Turkey until 01/01/2005, among the original products registered for the first time after 01/01/2001 in one of the countries within the Customs Union Area and the original products that will be registered for the time after 01/01/2005 in one of the countries within the Customs Union Area and shall be 6 (six) years starting from the first registration date in the Customs Union Area. For the products enjoying patent protection in Turkey, the implementation of the 6 (six) year data exclusivity shall be limited with the patent period of the relevant product”.

However the Ministry of Health (“MOH”) who is the implementing agency for data exclusivity enforces the exclusivity on new chemical entities. The MOH has taken the “new chemical entity” definition in Article 39/3 of TRIPS as reference however adopted a narrow interpretation by applying data exclusivity only on new molecules.

 

5. Which regulatory provisions exist with regard to market exclusivity following the approval of a medicinal product?

The only provisions providing market exclusivity are patent protection and data exclusivity protection. There is no SPC (Supplementary Protection Certificate) or market exclusivity for the first generic product in Turkey.

 

6. Is there a procedure which an IP right holder can obtain information regarding the generic marketing authorization (license) applications abridged to its original medicinal product?

Yes. In the judgment of the 10th Chamber of the State Council, dated 6.3.2007, the decision of the MOH rejecting the information request of legal representatives of an innovator company regarding the abridged applications made in reference to the innovator company’s licensed product was cancelled on the ground that the MOH’s rejection decision limits the right to seek legal remedies. After this judgment, the MOH responds to the official requests of the legal representatives of the IP right holders and provides information regarding whether such abridged applications exist or not, if exists, the number, the date and the name of the applicants.

 

1. What are the conditions for registering a trademark?

Under Articles 5 and 7 of the Decree Law pertaining to the Protection of Trademarks No. 556, any sign capable of

  1. being represented graphically, such as words including personal names, designs, letters, numerals, the shape or packaging of the goods and, by similar descriptive means, capable of being published and reproduced by printing,
  2. distinguishing the goods and services of one undertaking from the goods and services of another

can be registered as a trademark.

 

2. Does trademark protection unconditionally depend on a registration obtained?

No. Pursuant to Article 7/1-ı of Decree Law No. 556, well known trademarks within the meaning of Article 6 bis 1 of the Paris Convention are protected from similar subsequent national applications/registrations without respect to a national trademark registration. Furthermore, pursuant to Article 8/3 of Decree Law No. 556, earlier and genuine rights on an unregistered trademark are also protected from similar subsequent national applications/registrations.

 

3. Can three dimensional (3D) signs i.e, product shape and packaging, be registered as trademarks with Turkish Patent Institute?

Similar to those signs that can be represented graphically, 3D signs that include the shape or packaging of the goods can be registered as trademarks provided that they satisfy the distinctiveness requirements outlined in Article 7 of Decree Law No.556 meaning that the 3D sign must be capable of distinguishing the goods and services of one undertaking from the goods and services of another.

 

4. Is there a use requirement before/after applying for a trademark registration?

It is not required that the trademark be in use during the period of application or registration. However, if the mark has not been put to genuine use for a continuous period of 5 years upon its registration, an action can be filed with the IP Courts for cancellation on grounds of non-use.

 

5. Are coexistence of trademarks and/or coexistence agreements and letters of consent accepted under Turkish law?

Their consideration as a part of public order, renders the coexistence of identical/indistinguishably similar trademarks for same/same kind of goods/services not permissible under Turkish law. Accordingly, rejection of a subsequent application thereof cannot be overcome by coexistence agreements or letters of consent submitted to the Turkish Patent Institute.

 

6. Could the cancellation of a trademark on the grounds of non-use be argued before the Turkish Patent Institute during the administrative stage?

No. Cancellation of trademarks for non-use or any other grounds can be argued only before the IP Courts via the filing of a cancellation action

 

7. What are the administrative and judicial procedures for registering a trademark?

Initially, the trademark application is subject to an ex officio examination on absolute refusal grounds by the Turkish Patent Institute (“TPI”). Upon the ex officio examination, the goods/services rejected is deleted from the scope of the application and the application is published in the Official Trademarks Bulletin for the goods/services accepted, pending for third party oppositions for a period of three months upon which the application is officially registered. It is possible to appeal TPI Trademarks Directorate decisions rendered on the ex officio examination as well as any opposition filed before the Re-examination and Evaluation Board of the TPI (“TPI Board”). The decision of the TPI Board can further be appealed to the Civil Intellectual and Industrial Property Courts (“IP Courts”) of Ankara, that being the court with exclusive jurisdiction.  The IP Court’s decision can be challenged before the Court of Appeals.

 

8. What are the conditions for registering an industrial design?

Under Article 5 of the Decree Law Pertaining to the Protection of Industrial Designs No. 554, a design must be novel and of an individual character in order to be registered as an industrial design.

 

9. What are the administrative and judicial procedures for registering an industrial design?

An industrial design application is not subject to an ex officio examination by the Turkish Patent Institute (TPI) and is published directly in the Official Industrial Designs Bulletin, pending any third party opposition, for a period of six months. A TPI Industrial Designs Directorate decision rendered on the oppositions filed can be appealed before the Re-examination and Evaluation Board of the TPI. The decision of the TPI Board can be further appealed before the Civil IP Courts of Ankara, that being the court with exclusive jurisdiction.  The IP Court’s decision can be challenged before the Court of Appeals.

 

10. If a conflict arises about a trademark and industrial design registrations that cannot be solved in the administrative stage before the Turkish Patent Institute and is referred to the IP Court, are the parties bound by the evidences submitted to the Turkish Patent Institute during the IP Court proceedings?

Even though there is no provision worded to as to be explicitly applicable to this matter, recent Court of Appeal precedent requires the parties to be bound by the evidences submitted to the Turkish Patent Institute during the IP Court proceedings as well.

 

11 .What is the formal requirement for the power of attorney (PoA) to be submitted for the filings, i.e, oppositions and appeals, before the Turkish Patent Institute? Can the PoA be submitted after the opposition or appeal is filed? Is the same formal requirement applicable to the Court proceedings?

For oppositions/appeals filed before the TPI, a copy of the simple signed power of attorney, is sufficient. It is not required that the power of attorney be notarized. The appeals/oppositions must be filed with a PoA, the lack of which may result in the rejection of the opposition/appeal filed in case the applicant is not resident in Turkey.  In addition, it is important to note that it is not possible to file the PoA after the deadline for filing the opposition/appeal.

The simple signed PoA cannot be used for Court proceedings, since these require a notarized PoA. The power of attorney provided by foreign entities must also be apostilled according to the Hague Convention. Instead of an apostille should that be unavailable, an approval by the nearest Turkish Consulate would also suffice.

 

12. What is considered literary and artistic work and how is it protected?

In order to be considered a literary and artistic work, the work in question must

  1. fall under one of the definitions for literary and artistic works, set forth under Articles 2-5 of the Law on Literary and Artistic Works, listed therein as works of science and literature, music, fine arts and cinema,
  2. contain characteristics uniquely imparted by its owner.

Literary and artistic works are protected upon their creation, regardless of whether or not a registration has been obtained.

 

13. Which are the fundamental international treaties applicable to trademarks, industrial designs and literary and artistic works?

The most commonly applied international treaties are the Paris Convention for the Protection of Industrial Property (“Paris Convention”), Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, Agreement on Trade-Related Aspects of Intellectual Property Rights, (TRIPS Agreement), Convention Establishing the World Intellectual Property Organization, Berne Convention for the Protection of Literary and Artistic Works, Hague Agreement Concerning the International Registration of Industrial Designs.

 

14. Is cumulative protection for trademarks, industrial designs and literary and artistic works possible? 

 

Provided that the required conditions are satisfied for each intellectual property right, yes. Accordingly, a sign can be registered and protected as a trademark, an industrial design and a literary and artistic work.

 

15. Which are the competent Courts in intellectual property disputes? 

In Turkey’s three largest cities, Ankara, İstanbul and İzmir, specialized Civil and Criminal IP Courts handle IP matters. In other cities the Civil, Commercial and Criminal Courts of First Instance are the competent courts.