IP Rights Also Protect Public Health and Safety

Articles -

This matter started as an ordinary anti-counterfeiting case after receiving a picture of a fire-resistant glass from a global manufacturer of such products. The logo trademark was simply printed on the glass, and due to several inconsistencies, it was explicitly a fake product. Nevertheless, when it turned out that the fake product was not fire-resistant at all, public health and safety became the major concern besides trademark infringement.

After an investigation into the suspected company, the news even got worse because the target was installing the fake products to fire escapes of a public hospital. Following in-depth investigations, it was determined that fake glasses had been installed in many hospitals, and some pieces of fake products were kept at the counterfeiter company’s premises.

We filed a criminal complaint and requested a search warrant from the court to seize the products kept at the company’s premises. The Court rejected our request due to lack of evidence, and the prosecutor issued a non-prosecution decision. We then conducted a civil discovery of evidence with the local Civil IP Court and managed to determine and seize fake products through a civil preliminary injunction decision.

After submitting a favourable expert report to the civil discovery of the evidence file, we filed a fresh criminal complaint. We concurrently informed the Ministry of Health (“MoH”) and the management of relevant hospitals and administrative bodies about the threat to public health and safety.

The MoH initiated an investigation covering all hospitals throughout Turkey, and it turned out that there were several other hospitals in which fake products were being used. This piece of information led to an official fire-resistance test conducted upon request. The tests conducted by Turkish Standards Institute Laboratories made it clear that the products were ordinary glasses and just resisted 3 minutes to fire though it was supposed to be resistant for 120 minutes, to give enough time to rescue patients in critical conditions. The MoH has taken some official steps, and all relevant hospitals took action to have the fake products changed with fire-resistant ones.

The prosecutor indicted the infringer based on trademark infringement at the end of the preparatory investigation. As we managed to bring all concrete pieces of evidence, the accused also confessed that he was guilty and added that he was ready to replace all fake products with fire-resistant products. The Criminal IP Court found the infringer guilty and, considering the public health and safety risks he created, sentenced the infringer to imprisonment without suspending the verdict, unlike most anti-counterfeiting cases tried in the country.

The accused filed an appeal before the Regional Court of Appeals. However, the Court of Appeals upheld the local IP Court’s decision and decided to inform the Public Prosecutors’ Office to instigate a separate investigation based on aggravated fraud bearing in mind that the fake products were sold to the State through public tenders.

In this matter, we not only protected the client’s IP rights but also helped to end a serious public health and safety threat and enabled the State to collect losses from and punish an infringer who also committed aggravated fraud against the state.

Above is an important example of how additional grounds – such as public health and safety-related provisions – can be leveraged in matters that appear to be straightforward IP infringement/counterfeiting issues. It also shows that brand owners should consider all whilst taking action against counterfeiters and seek tailored action plans for ultimate success in their brand protection efforts.

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