In trade the immaterial assets of enterprises are as important as their material assets. Trademark right is an immaterial industrial right which can be claimed against everybody and grant an exclusive right to its holder.
Although a direct and general definition of trademark is not given in the Turkish Industrial Property Law No: 676, the signs which may be considered as trademark are stated in the article 4. According to that article: “a trademark may consist of all kinds of signs including words including names of individuals, shapes, colors, letters, numbers, sounds and the form of the goods or their packagings provided that it ensures to make a differentiation between the goods or services belonging to an enterprise and the goods or services belonging to other enterprises and may be indicated in a manner ensuring clear understanding of the subject of protection provided to the trademark holder”.
A) GUIDELINES CONCERNING THE USE OF TRADEMARK UNDER THE SCOPE OF THE INDUSTRIAL PROPERTY LAW NO. 6769
Provisions set forth under the scope of the Industrial Property Law concerning the use of the obligation to use trademark applies for the duly registered trademarks. It is not mandatory to use a registered trademark right and a grace period of five years must elapse in order to be able to request the cancellation of the unused trademark pursuant to the article 9 of the Industrial Property Law.
According to the article 9 of the Industrial Property Law, if the registered trademark has not been seriously used within the period of five years beginning from the date of registration in terms of the goods/services subject to registration in Turkey, the trademark shall be cancelled with respect to the unused goods/ services. The use of the trademark with different elements without altering its distinctive character, its use only on the goods or packagings of the goods only for export purposes and its use by others with the permission of the trademark holder shall be accepted as the use of the trademark
B) CANCELLATION OF THE UNUSED TRADEMARK
Only the relevant officers from the authority are entitled to request the cancellation of a trademark. Requests for the cancellation of a trademark shall be submitted against the persons registered as trademark holder in the register on the date of the request.
It may be decided to cancel the trademark under the conditions indicated below:
- Trademarks which have not been used within five years or whose use was discontinued for a period of five years beginning from the date of registration without any justifiable reason.
- Trademark becomes a widely used name for the goods or services for which it is registered due to the acts of the trademark holder or its failure to take the necessary measures.
- Trademark misinforms the public especially about the quality or geographical source of its goods or services as a result of the use of the trademark by the trademark holder or uses allowed by the trademark holder.
- The use of the guaranty trademark or common trademark contrary to the article 32 of the law.
If it is ruled for the cancellation of the trademark that decision shall take effect as of the date on which the request for cancellation was submitted to the Authority. However, if the cases of cancellation took place on a previous date it may be ruled that the decision for cancellation shall take effect beginning from that date, upon request.
As a result, the guidelines concerning the use of the trademark and exceptional cases considered as the cases of the use of the trademark are regulated by the law and accordingly the trademark must be seriously used by the trademark holder himself for the goods or services registered in the register in conformity with its function. Otherwise the trademark shall be deemed not to have been duly used and subjected to legal and criminal sanctions.
For further information and inquiries please contact:
Av. Omer Faruk Hansu – [email protected]
Cemre GÜRBÜZ – [email protected]
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