Does the Covid-19 Pandemic Constitute a Justified Reason for non-use?

After the covid-19 pandemic was declared globally in 2020, measures were taken in Türkiye, like in the rest of the world, and lockdowns were experienced with sector-specific exceptions. The volume of certain business activities thus decreased, which naturally had an impact on trademark use in various sectors.

Recently, in a non-use revocation action discussing the impact of pandemic-related measures, the court found that the arguments regarding the trademark owner’s inability to use a trademark registered for personal care products due to the pandemic were not justified.

Background

A non-use revocation action was filed in 2023 against the defendant’s trademark, which was registered in 2017 for personal care goods in Class 3. The defendant argued that the pandemic was a force majeure event which had compelled it to cease using the trademark temporarily, and that such situation constituted a justified reason for non-use.  

The plaintiff argued that the issue of whether the concept of “justified reason”, as regulated in Article 9/1 of the Industrial Property Code (No 6769), encompassed the covid-19 pandemic should be determined on a case-by-case basis, considering the specifics of the relevant sector. The plaintiff argued that, while certain industries were negatively affected by the restrictions imposed during the pandemic, the production and sale of personal care goods in Class 3, for which the defendant’s trademark is registered, had increased exponentially in volume in the relevant business sector due to intense demand during the pandemic. For this reason, the plaintiff alleged that no restriction had ever affected the defendant. Therefore, it was unreasonable for a party whose business was not affected by the restrictions to claim that the pandemic constituted force majeure and provided a justified reason for non-use of the trademark. 

Decision

After examining the parties’ claims and the expert report, the Istanbul Anatolian Second Civil Court for Intellectual and Industrial Property Rights upheld the non-use revocation action (Decision No 2023/30 E and 2024/186 K, 14 November 2024). The court decided that the defendant could not prove the genuine use of the trademark and ordered its revocation retrospectively, effective from the end of the five-year grace period, in line with the plaintiff’s request.

In its reasoned decision, the court underlined that, considering the scope of the trademark at issue, it should have been used even more intensively during the pandemic. Therefore, the arguments put forward by the defendant were rejected. In terms of the invoices submitted by the defendant, the court stated that these were not sufficient to prove the genuine use of the trademark with commercial effect for the past five years.

Comment

The decision highlights that the pandemic itself is not accepted as a justified reason for non-use in revocation actions; all the circumstances of the case must be considered and the impact of the pandemic should be carefully assessed on a sectoral basis. If the decision becomes final, it could serve as a precedent in similar cases where the pandemic is used as a defence for non-use of a trademark.