In order to talk about trademark infringeing, the brand must have been used by the third party for economic purposes.
In Article 29 of the Industrial Property Law, acts deemed to be infringement of the right to trademark are regulated. The equivalent of all these behaviors is that the third party used the brand for economic purposes. In order to talk about economic purpose, the purpose of gain is not necessary. Therefore, it does not necessarily have to operate for a price in using it for economic purposes. It is also economical for a business to distribute free products for promotional purposes.
The right of the trademark registration owner to prohibit is not dependent on the defective or malicious use of the third party.
Regardless of which acts of trademark infringement, the use of the third party is not only economically motivated, but must be carried out with a sign and goods or services that fall under the protection of the right to trademark. Applying for registration for a sign that falls under the protection of someone else’s registered trademark does not imply the use of the trademark. Therefore, the act of applying for registration does not constitute a violation of the right to trademark.
The use of the brand should be covered by the protection of the brand. The protection scope of the right to trademark is governed by the Industrial Property Law m7.2. Accordingly, in order to be able to talk about trademark infringe;
- a) Use of any marking that is the same as the registered trademark in goods or services covered by the registration,
- b) Use of any marking that is the same or similar to the registered trademark and covers the same or similar goods or services covered by the registered trademark and may therefore be confused, including the possibility of being associated with the registered trademark by the public,
- c) Any marking that is the same or similar to the registered trademark, regardless of whether it is in the same, similar or different goods or services, and which will gain an unfair benefit from the reputation of the brand or damage its reputation or damage its distinctive character due to the level of recognition it reaches in Turkey, should be used without justification.
In addition, rape acts must be used within the borders of the country where the trademark is registered in order to mention a rape that falls within the right of the brand owner. The exception is the well-known brand in the meaning of the Paris Agreement. Although this brand is not registered in Turkey, it is also protected against unfair use in Turkey.
Acts Deemed Infringement of Trademark Rights
Industrial Property Act 29, which regulates acts deemed to be infringing on trademark rights. Article 7 of the same law. He refers to the article. In this context, it is necessary to look at Article 7.3 of the Sinai Property Law regarding which uses to be considered rape acts.
- Placing the Mark on The Goods or Packaging: in other words, the use of the same or similar mark on different goods or on the packaging or packaging of the registered trademark is considered infringement on the trademark’s right to use the same or similar mark in different goods or on the packaging or packaging of the registered trademark in such a way that the same or similar marking of the registered trademark may be mixed in the same type of goods or the same or similar goods.
- Commercial Possession of The Goods Bearing the Mark: It is a violation of the right of the trademark to be used unfairly under Sinai Property Law 7.2 in order to bring this property to market even if it has not yet been brought to market. Although the person who possesses the registered trademark for commercial purposes carrying the property under Article 7.2 of the Sinai Property Law is not defective, this possession will constitute a violation of the actual trademark right. It is not necessary for the person who obtained the trademark for commercial purposes to have produced them in person in order for this action to constitute a violation of the right of the trademark. For this purpose, the number of goods held is not important for the violation of the right to brand.
- Making a Commercial Offer for The Goods Bearing the Mark: The offer that goods bearing the sign can be delivered in SMK 7.3 or the offer that services can be offered under the sign are also considered among the acts of infringement of the trademark right.
- Introduction of Goods Bearing the Mark: After the brand is placed on the goods, the owner has the authority to decide whether these goods can be put on the market. The introduction of goods that unfairly carry the brand to the market also constitutes a violation of the right to the brand. Although the manufacturer of branded goods has carried out this production with the permission of the brand owner, if he has driven this product to the market without permission from the brand owner, there is still a violation of the right to brand here. The contract between the brand owner and the manufacturer does not implied permission by the manufacturer to bring the branded goods to market.
- Import or Export of Goods Bearing the Mark: this provision is not related to service brands. The registered trademark owner in Turkey may prevent the importation of goods that carry his trademark unlawfully to Turkey. The fact that the goods imported by the third party are registered abroad on behalf of another person does not change this result. Unauthorized use of someone else’s registered trademark in goods exported abroad is a violation of the right to trademark. In the provision, he explicitly mentioned imports and exports and did not mention transit.
- Use of the Mark in Business Documents and Advertisements: In SMK m. 7.3, the use of the sign in the business documents and advertisements of the enterprise is also considered in violation of the trademark right. Regardless of whether the ad is oral or written, oral advertising will also be considered a violation of the right to brand.
- Use of the Mark on the Internet: the use of the mark as a domain name on the Internet, the use of the brand by the third party as a guiding code, the use of the same or similar as a keyword or similar forms constitute a violation of the right of the trademark.
- Use of the Sign as a Trade Title or Business Name: unauthorized use of the sign by the third party as a business name or trade title is also considered a violation of the right to trademark.
- Unlawful Use of the Mark in Comparative Ads: If comparative advertising does not comply with the legal regulations regarding comparative advertising, the use of the mark in comparative advertising constitutes one of the forms of violation of the right to the trademark.
- Unauthorized Or Transferring Rights Granted by the Brand Owner to Third Parties
Trademark Rights Claims That The Raped Rights Holder Can Make
Infringe Detection Case
The Industrial Property Law m. 149.1 paragraph a) the trademark owner may request to determine whether the action was rape. There is a specially regulated detection case in the SMK. This case is independent of HMK m.106 and can be filed without the conditions set forth in this provision. Through the determination case stipulated in the Industrial Property Law m.149.1, it is examined whether an act constitutes a violation of the right to brand. No matter what rape action it opens with, the perpetrator does not need to be imperfect in order to detect rape. The act of rape does not have to continue before the detection case can be filed. If the action is terminated, a determination case can be filed.
Prevention of Possible Infringe Case
The Industrial Property Law m.149.1 paragraph b) the trademark right holder may be opened against any acts of rape that are likely to be repeated in the prevention or termination of possible rape of the trademark right. In order for this case to be filed, the danger of rape is necessary. The danger of rape is in case of strong signs of recurrence or occurrence of the act of rape. The ability to prosecute possible rape prevention does not depend on the perpetrator’s fault or the loss of the trademark owner.
The Case For Stopping Infringe
The Industrial Property Law m.149.1 bent c) may also file a lawsuit to stop rape acts against the person who infringes the trademark right. This case is filed against the ongoing act of rape. In order for the stop case to be filed, the defendant who committed the act of rape does not have to be at fault and the brand owner must suffer damages.
Removal of Infring Case
The rape removal case aims to address the consequences of rape. This case can be filed if the rape ends but the effects continue or the rape continues. This case is a case of eda. The removal of rape does not depend on the fault of the defendant who committed the act of rape and the loss of the brand owner in order to be prosecuted.
Action For Compensation
According to the Industrial Property Law m.49.1 paragraph ç), it has been decided that in addition to the removal of rape by the trademark right holder, compensation for material and moral damages can be demanded.
The right to brand as an intellectual property right is also a right conducive to rape due to its intangible nature. Because it is not possible to protect the brand in a special way, as in a product of a material nature. In addition, due to its intangible nature, it is difficult to determine the scope and limits of the protection of the right to brand. Therefore, if this right is violated, there is also the right to seek compensation.
