Can The Accused be Acquitted Solely on The Grounds That The Number of Seized Counterfeits Is Very Low?

The acts considered as infringement of trademark rights are regulated under Article 29 of Industrial Property Law no. 6769 (“IPL”) 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. Since this article uses the "products" in plural form in the wording of the law, and since the criminal provision of the IPL, Article 30, defines the offense by referring to the provision on "trademark infringement" by saying "one who produces goods or services upon infringement of a trademark of someone else via adaptation or excerption", it was debated whether the accused could be acquitted in cases where a search and seizure was enforced within the scope of trademark infringement crime and where the number of seized products was one or very low.

A very recent decision of the Court of Cassation has clarified this debate. In the decision no. M. 2022/8035 D. 2022/18214, the 7th Criminal Chamber has ruled that

“Although the Local Court rendered a verdict of acquittal on the ground that only one counterfeit product was seized in the workplace of the defendant and therefore no conclusive evidence could be obtained to prove that the defendant acted with a criminal intent; it was established that the defendant sells toys and stationery in the workplace operated by the defendant, the intervening party first purchased counterfeit products from the defendant's workplace to follow up the crime of trademark infringement which is the subject of the complaint for investigation, and then presented the product purchased and the cash register receipt documenting the purchase of this product from the defendant's workplace to the relevant Chief Public Prosecutor's Office as evidence, which led to reasonable suspicion to obtain a search warrant at the workplace, thus evidence was obtained,  a search was conducted at the workplace of the defendant with the search warrant issued by the criminal court of peace upon this evidence, another counterfeit branded product seized at this workplace was found to be offered for sale according to the "search and seizure" report of 14/04/2015, and moreover, there was no barcode and hologram on the counterfeit product seized at the workplace of the defendant, although there should be a barcode and hologram on a product legally offered for sale, and this issue was recognized at first glance, in this case (. ...) constitutes the act of " selling,…, placing on the commercial field in another way, …, keeping for commercial purposes the products bearing the trademark used by means of violation, despite the knowledge or the obligation to know that the trademark is imitated, upon using the trademark or its non-distinctively similar version", and that the defendant – due to his business- is in a position to know and should know that the products bearing the trademark registered on behalf of the intervening company are counterfeit; […] Accordingly, without considering the existence of the elements of the offense of infringement of the trademark right charged against the defendant, who is beyond doubt sold one product subject to the crime in his workplace and offered the second product for sale, the court of first instance ruled the acquittal of the defendant in writing instead of his conviction with a justification that was not deemed appropriate"

and quashed the decision of the court of first instance by finding it unlawful.

Moreover, as it appears from the dissenting opinion of the same decision, the fact that this decision was rendered despite the fact that the defendant "was active in the sale of stationery and toys for a short period, such as one and a half months" shows that the Court of Cassation unquestionably took into account the fact that the defendant knew and should have known that the seized product was counterfeit simply because he was a merchant - even for a brief period - and also how vital it is to purchase counterfeit products from the defendant's workplace as evidence before filing a complaint based on trademark infringement, and also to present all kinds of evidence such as receipts, invoices, notary approvals etc. regarding this purchase.

In the light of this decision and the explanations above, it has been demonstrated that in cases where the right of complaint is exercised as a result of a purchase made upon receipt, a search and seizure decision is issued according to the complaint, and the product subject to the crime is obtained through the enforcement of the decision, the fact that a small amount of counterfeit products were seized cannot justify the acquittal decision alone. In other words, the seizure of even only one product in cases where procedures are duly executed - within the framework of a search and seizure order issued based on reasonable suspicion - is sufficient for establishing the offence of infringement of trademark rights and the sentencing of the accused for this offence.

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