1. Is the Turkish legal infrastructure sufficient for anti-counterfeiting?
Yes. Turkey has signed almost all international intellectual property agreements -including TRIPS signed by and between the members of the World Trade Organization which aim to harmonize its legal infrastructure targeting anti-counterfeiting and fighting the illicit trade- and has been acting in compliance with the said agreements.
As of today; the Industrial Property Law No. 6769, the Law No. 5846 on Intellectual and Artistic Works which are in force in Turkey, offers the same level of protection with the relevant laws of the developed foreign countries.
2. Which regulations and innovations on anti-counterfeiting were introduced by the new Industrial Property Law which entered into force at the beginning of 2017?
The Industrial Property Law regulates that those who produce, market or sell goods or services through infringement of a third party’s trademark rights, distributes such goods or services or otherwise releases them into the market, or import or export, keep the same in their possession for commercial purposes shall be convicted to imprisonment from one to three years, and shall be imposed punitive fine up to twenty thousand days.
The “fast destruction procedure” which foresees quicker destruction of the counterfeit products is regulated under the new Industrial Property Law. The new procedure introduced entitles the Public Prosecutor – or the judge if the matter matures into a full criminal case – to order the destruction of the rest of the goods that lay with the trustee where the goods are at risk of damage or serious loss of value, or if the storage of the goods is very costly, provided that the counterfeit nature of these goods is confirmed by an expert report.
3. What are the methods available for use in anti-counterfeiting activities at the Turkish Customs offices?
In Turkey, the customs legislation on protection of intellectual property rights is very effective. Right owners or their representatives are entitled to protect their intellectual rights through an online application to be filed before the General Directorate of Customs for suspension of counterfeit products at the customs directorates. The said protection shall be granted for a period of maximum one year taking validity period of the relevant intellectual property right into consideration. The granted right may be renewed at the customs.
Thanks to these applications which are deemed valid before all customs offices in Turkey, customs directorates issue a 10-business day temporary suspension against counterfeiting activities and directly notify the right holders or their representatives upon identifying a possibly counterfeit product. Upon such notification, the right holders and/or their representatives may examine the relevant products, resort to the legal remedies granted to them by the laws if the products are confirmed to be actually counterfeit and may prevent release of the goods out of the Customs Territory.
Article 57/6 of the Customs Law introduces a “Simplified Procedure” for destruction of counterfeit goods. According to this procedure; should the parties come to a mutual agreement, counterfeit products may be destroyed by the Customs Offices without the need for any further court decision.
4. How do the authorities fight against the counterfeit products confiscated within the scope of anti-smuggling activities?
Applications filed before the Directorate General of Customs also lay a burden on the Liquidation Offices which sell the products being subject to the crime of smuggling. In this context; in presence of any doubt that the confiscated products are counterfeit, the Liquidation Offices are expected to stop sales of the relevant products and notify the right owners or their representative thereof. Within the given framework, sales of the suspected products shall be ceased for a period of 10 business days for the right owner to make necessary examinations and to obtain a writ from the Prosecution Office or a court order announcing that legal action has been taken.
5. What are the advantages offered by criminal actions within the scope of anti-counterfeiting activities?
The basic advantage offered by criminal actions is that confiscation decisions can be quickly made upon the trademark right holder’s complaint and following the referred procedure, public prosecutors and judges ex officio conduct the related investigations and legal proceedings. Struggle against counterfeiting activities through criminal actions produce results within a shorter period and at a lower cost as compared to civil actions.
Besides, the criminal provisions about intellectual property crimes of the Industrial Property Law regulate that should sellers reveal source of the counterfeit goods, namely manufacturers of the counterfeit products, and enable authorities to seize the goods at source; no penalty shall be imposed on them. Thereby, it has become possible to reach the counterfeit manufacturers/importers by way of taking actions against sellers.
6. What are the procedures to be adopted against a store which is found out to be selling counterfeit products?
Upon identifying a store which is assumed to sell counterfeit products, a complaint petition shall be presented to the competent Public Prosecution Office along with the evidences which arouse reasonable suspicion required for a search and seizure warrant. After the competent Court issues a search and seizure warrant upon the relevant Public Prosecution Office’s request, a writ of execution shall be issued for further action to be taken by the law-enforcement officers and police officers conduct search and seizure activities at the address given in the Court’s warrant mostly within the same day.
7. What are the penalties imposed on the defendants who are found out to be selling counterfeit products?
According to the Industrial Property Law; those who are found out to be selling counterfeit products shall be convicted to imprisonment from one to three years, and shall be imposed punitive fine up to TRY 2 million following the legal proceedings. For crimes related to copyrights, defendants may be convicted to imprisonment from two to four years.
Article 231 of the Criminal Procedure Code foresees that for the convicts who have not intentionally committed a crime and whose punishment is less than two years, announcement of the verdict shall be postponed. According to the referred regulation, the accused party’s punishment shall be postponed for five years. In cases where the accused has committed a new intentional crime during the given period, the court shall pronounce the judgment. In cases where there has been no intentional crime committed during the period of probation, the judgment shall be annulled and the judgment shall not have any legal effect for the accused. This provision may be applied if the judge comes to the conclusion by taking the accused person’s attitudes and behaviors at the hearing that he shall not commit another crime.
Additionally, confiscation/destruction of the infringing counterfeit products shall be decided at the end of the criminal proceedings.
8. What are the measures to be taken against unauthorized online sales?
Considering that the counterfeit sellers can now access consumers more easily, they conduct sales activities via online platforms. Commitment of criminal activities over the Internet makes it difficult for the authorities to monitor suspects and to generally conduct investigations.
In addition to this, if a crime is committed over the Internet; results can be produced by following the standard methods adopted for the criminal proceedings. Therefore, it is of utmost importance to carry out investigations about the owners of such websites or suspected product lines.
9. Is it necessary to work with both advocates and investigators within the scope of the anti-counterfeiting activities?
Yes. In the field of anti-counterfeiting activities, if those who plan to take legal actions in Turkey work with the advocates and investigators being experts in the field of intellectual property cases; better results will be produced. Working with foreign investigators can be useful for cross-border cases.
10. What is the most efficient institution in Turkey in the field of anti-counterfeiting?
Turkish Police Service has a very efficient department which consists of officers being experts in the field of intellectual property rights. Regular contact and coordination with the relevant police departments are the most important factors to achieve success in anti-counterfeiting activities to be conducted in Turkey.