An Overview of Intelectual and Industrial Property Law in Turkey
In 1995, Turkey has started the necessary studies for building an active and modern intellectual and intellectual property rights system and achieved significant results. The steps taken by Turkey in the previous decade in the field of intellectual and industrial property rights are embodied in various laws, decree laws and regulations.
The history of intellectual and industrial property law in Turkey has become a regional attraction center and dates back to the 13th and 14th centuries; to the Ottoman Empire era. Innovation has been strongly encouraged within the "Ahi Culture" (an Islamic guild), which was dominant in that era. According to the Ahi Culture, guilds that develop a new product or make an innovation deserve a monopoly right for that product or innovation. The first arrangements aiming to protect industrial property have been made in this manner. The first important document which is similar to the arrangements of Europe is dated 1850. As for the copyright concept entered into the Turkish legal system with this ordinance in 1850. Several regulations and ordinances have been put into force since then and have made significant contributions to the protection of intellectual and industrial property. Hence, Turkish law can be counted among the legal frameworks that actively protect intellectual and industrial property rights, when compared with other international legal systems. We can easily say that several legislation practices are still to come and that many efforts have been made in order to make such protective measures more effective.
Turkey has hosted many international conventions and become a member of several international organizations for the purpose of making amendments to the national legislation and judiciary system more parallel with international legislation. In this regard, Turkey signed the "Paris Convention for the Protection of Industrial Property" in 1925 and attended "the World Intellectual Property Organization (WIPO)" in 1976. These were important steps taken towards integration with international conventions and organizations relating to the protection of intellectual and industrial property rights. In addition to these instances, thirteen different international conventions that Turkey is a part of have made a significant contribution to Turkey's efforts in this field.
Another important development in terms of the Turkish Intellectual and Industrial Property system is the establishment of the Turkish Patent Institute that has financial and administrative autonomy. It was founded for the purposes of contributing to the technological development of Turkey, ensuring research and development activities and creating a free competition environment within the country in order to provide the public with the national and global information and documentation with regards to intellectual and industrial property rights. With the establishment of this institute, industrial property rights are now registered and certified within the institute. An industrial right should be registered at and certified by the Turkish Patent Institute to utilize a protection right within the Turkish industrial property legislation. In the contrary case, the protection in regard to the relevant right shall be limited to the unfair-competition related provisions of Turkish Commercial Code. The said industrial rights may only be registered within Turkish Patent Institute. The industrial rights for which a protection right may be demanded are trademarks, patents, utility patents, industrial designs, geographical signs and integrated circuit topographies. Each of the above mentioned industrial rights is registered with different principles and methods. In this regard, biotechnological inventions, databases, computer software and new plant species are also protected with registration.
Although severe sanctions and penalties are imposed for the violation of such rights, the number of violations and such violation attempts are high as the eagerness for profitability and commercial activities soar. The companies that failed to take the necessary measures in this regard have been aggrieved in the past. But it is possible to avoid those risks by taking the necessary legal security measures in a timely manner. Thus, if you plan to invest in Turkey you should see the strategies regarding the protection of intellectual and industrial property as part of this investment plan.
Another issue that should be taken into consideration in industrial rights management is the process cost. The costs of registration at the Turkish Patent Institute are reasonable when compared to those in European countries. The main costs involved in the registration process are the application fees, registration document fees and attorney fees.
Several sanctions within the criminal law and private law are applied for the violations or attempted violations of any rights given to ensure the legal security. In such a case and depending on the nature of the violation, several lawsuit and criminal case alternatives in private law and/or criminal law with different effects exist. In cases of intellectual and industrial property right violations, the right holder may demand, through lawsuits in specialized courts, the determination and avoidance of the violation, indemnification of the suffered losses, confiscation of tools, machinery and devices that have been/are used in the violation of the said rights, indemnification for the financial expenses suffered by the right holder to execute the legal procedure and the notification of such violations to the public. Moreover, the right holder may file a criminal case against the violating party/parties and demand a fiscal penalty and/or prison sentence, depending on the nature of the violation.
As we mentioned before, the most effective protection method is the registration of the industrial rights within the Turkish Patent Institute. However, this doesn't mean that the protection process starts with registration. The application moment is of a high importance in terms of protection. For this reason, making the most accurate and timely application will ensure a legal security against risks. The most important factors that should be underlined at this point are "timeliness" and "accurateness" of the application. For instance, an application for any of your brands registered in Italy might have previously been registered in Turkey by another party. In such a case, marketing your product in Turkey under your own brand may possess specific risks. The entity or legal person that has previously registered this trade mark in Turkey may demand the confiscation or even demolition of your product at customs and file a criminal case and/or compensation case against you. This would harm your brand. Meanwhile, we have to mention that such a case would have miscellaneous exceptions. For above mentioned reasons, we strongly recommend that you register your industrial rights within Turkish Patent Institute, which has or may have a connection with Turkish market.
National and international legislation, the intellectual and industrial property rights framework in Turkey, the role of specialized courts in the proceedings, the potential and dynamism of the market, the low costs of legal security and the high violation of rights rate are the major factors that should be taken into consideration when investing in Turkey.
ABOUT THE AUTHOR: Atty.M.Emre Yenici, LL.M.
Admitted to Istanbul Bar (2009), Educated in: Ankara University Law School(LL.B.), Marmara University Law School, Public Law(LL.M.), Worked previously for: UHB International Advisers Co.(2007-2008), Vice-President of International Union of Young Lawyers (UGAD).Speaks English and Turkish. Practices: Real Estate Law, Commercial Law, Employment Law, Business Immigration Law, Banking and Insurance Law, Bankruptcy and Foreclosure Law, Corporate and Contract Law, Public Law, Information Technology Law.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.