Turkish Court of Cassation’s Recent Decision on Search and Seizure Orders is Strengthens the IP Owners’ Position

In Turkey, following the criminal complaint route against counterfeits is very effective, yet several criminal courts are becoming rather hesitant to grant search & seizure warrants. The most problematic courthouse in this respect has been Istanbul Courthouse for quite some time and this courthouse is very important as its jurisdiction covers very significant locations for brand owners, such as Grand Bazaar, Taksim, Tahtakale etc.. The criminal courts of Istanbul courthouse have been rejecting search and seizure warrant requests, without any concrete and satisfactory justification, for quite some time. We, Gün + Partners, among many other law firms involved in the practice, have been collaborating with NGOs and having several high-level meetings with the Turkish Ministry of Justice to solve this long-standing wrong practice of certain courts.

On September 23, 2022, Istanbul Courthouse’s 4th Criminal Court accepted the complainant’s objection against the decision of the 3rd Court rejecting the search and seizure warrant request as usual, based on a recent non-published Turkish Court of Cassation (“CoC”) decision and granted a search & seizure warrant. The mentioned decision of the CoC was issued by the 19th Criminal Chamber with no. 2020/1872 & 2021/318 on January 21, 2021 and now constitutes an important precedent for the brand owners.

In the conflict, the brand owners filed a joint criminal complaint before Istanbul Public Prosecutor’s Office and the specialized IP prosecutor requested a search & seizure warrant from the Criminal Court on duty. The evidence in the file were a test purchase from the infringer with a receipt and an expert opinion confirming the counterfeit nature of the purchased goods. Istanbul 3rd Criminal Court rejected the search & seizure request merely stating that “there is no objective and convincing evidence to create reasonable doubt as to the crime, which is necessary for granting a search & seizure warrant” as usual. The Court also specified that the expert opinion cannot be deemed to be objective since it has been brought before the court by the complainants.

Upon the complaint’s objection, the next criminal court, namely the 4th Criminal Court took over the matter. Whilst accepting the objection and granting a search and seizure warrant, it referred to the above-mentioned CoC decision and found the submitted evidence sufficient and determined the presence of reasonable doubt for allowing a raid to be conducted at the address which lead to the seizure of hundreds of counterfeits and prevention of an ongoing crime.

In the conflict subject to the CoC’s precedential decision, the complainants could not file a receipt or an invoice confirming where the goods were purchased from, but they filed an expert report confirming the counterfeit nature of the samples purchased without receipt as well as an undercover police investigation was ordered by the local Prosecutor’s Office which also confirmed the ongoing sale at the related address. The CoC’s Chamber determined that expert report could be taken into consideration as sufficient evidence for “reasonable doubt” as the undercover police investigation minutes also support the complainants’ claims. The Chamber also specified that the brand owners would not file complaints against sellers of genuine products, such would not be in line with the ordinary course of life.

The reasoning of the CoC decision was well-prepared and basically emphasized that the complaints by the brand owners shall be evaluated in a broader manner as it would not be logical to expect them to file complaints to seize originals. Such would not mean that the criminal courts should not seek for further evidence, such as receipts, police investigation reports etc, to back up the complaints of the brand owners, but direct and un-reasoned refusal decisions of the criminal courts are no longer to be acknowledged as are.

Even though brand owners might have some unpleasant experiences during criminal proceedings in the recent years, this CoC decision has already started showing its effect as we have managed to obtain several search and seizure warrants from Istanbul Courthouse – which also shows how important it is to continuously seek for a better IP ecosystem and practice.

First published by ManagingIP in Dec 06, 2022.

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