Brand; In its simplest definition, it is all kinds of signs that enable the goods or services of an enterprise (real and legal person) to be distinguished from the goods or services of another enterprise. One of the functions of the brand is to indicate origin. In other words, the brand on a good or service informs the consumer about who provided that good or service. With this function, the brand is the first message of a commercial enterprise to the consumer and is one of the most important assets of the commercial enterprise.
Yeah. Although the concepts of trademark and patent are often confused with each other and used interchangeably, these two terms essentially refer to two separate industrial property rights with different functions. While a trademark is a sign that enables the goods or services of an enterprise to be distinguished from the goods or services of another enterprise; The patent protects inventions that exceed the state of the art and are applicable to the industry. Both the Trademark and the Patent are registered by Turkish Patent within the framework of their own legal regulations. For this reason, in terms of terminology, the term "patent the name" is a common mistake. In fact, it should be "registering the trademark".
There is no general limitation regarding the signs that can be trademarks. In accordance with the Industrial Property Law No. 6769, all kinds of signs, including personal names, especially words, shapes, letters, numbers, colors, sounds, the form or packaging of goods, which can be displayed with drawings or expressed in a similar way, can be published and reproduced by printing. can be selected and registered as a trademark. The most important criterion here is that the sign desired to be used as a brand can fulfill the function of the brand. In other words, it has the ability to distinguish the goods or services of one enterprise from the goods or services of another enterprise. Although it is mostly figurative elements such as signs, words and/or logos chosen as brands; There is no formal obstacle to the signs that can be registered as a trademark, provided that they have a distinctive character. The reason why the first signs that come to mind when talking about a brand are words and logos is that they are the most common types of brand. However, it is seen that the signs chosen as a brand are not limited to these, both from the expression of the legal legislation and from the practice. For example, the phone ringtone of NOKIA company is also protected as a trademark, because this ringtone is associated with NOKIA branded mobile phones and distinguishes these phones from phones of other companies. Product shapes can also be registered as trademarks. For example, the bottle design of COCA COLA is protected as a registered trademark. While the distinctive feature is present from the first moment in terms of some signs; In terms of some signs, this may not be the case at the first moment, but after a certain period of use. However, this does not mean that a sign with a lower distinctive quality at first cannot be registered as a trademark.
A company should pay attention to the fact that the trademark is sufficiently distinctive, that the trademark is not descriptive and/or misleading in terms of the goods and services for which it is intended to be registered, during the process of creating the brand on which its products and services will be used. A sign that may be descriptive for a certain group of goods and/or services may be accepted as a distinctive mark for different goods and/or service groups. For example, for fruit-vegetable goods, APPLE, PEAR etc. While it is not possible to register words; It is possible to register as a trademark for other products or services where these words are not descriptive such as computers. It is necessary to pay attention to a fine line in terms of descriptive and misleading. Because a sign can be misleading even if it is not descriptive in terms of a good and/or service group. For example APPLE, PEAR etc. Although it is not possible to say that the words are descriptive in terms of carbonated soft drinks, these phrases may be misleading as they may give an impression about the content of carbonated soft drinks. For this reason, it is recommended to consider the characteristics of the goods and/or service group to be registered and to stay away from them as much as possible when choosing a trademark. In addition to these, it is recommended to carry out a brand similarity research before applying for trademark registration and starting to use the trademark, in other words, to check whether the same or similar trademark is registered in the name of someone else or whether it is used by someone else. Because otherwise, even unintentionally, the usurpation of another's trademark right and/or the infringement of another's trademark may occur. Similarity research can be done on the official website of the Turkish Patent and Trademark Office (TÜRKPATENT), or it can be done with the support of companies providing services on this subject. At this point, an issue that is generally misunderstood is the idea that trademarks registered abroad on behalf of someone else can be registered by someone else in Turkey, since they have not yet been registered in Turkey. However, although the principle of territoriality is the fundamental principle in Trademark Law, the registration of an original phrase, especially registered abroad, in the name of someone else in Turkey can be prevented.
Trademark registration is not mandatory for trademark use. An unregistered trademark is also protected in accordance with the unfair competition provisions of the Turkish Commercial Code. However, trademark registration enables the trademark owner to benefit from the provisions of the Law No. 6769 and gives convenience and priority to protect their rights against third parties within the scope of the goods and services for which the trademark is registered. The importance of trademark registration shows itself especially in terms of preventing the registration of trademarks by third parties without permission. In addition, the registered trademark owner will benefit from much more advantageous provisions in preventing the unauthorized use of his trademark by third parties, compared to a business that has not registered its trademark.
In order not to encounter any problems such as usurping the rights of third parties unintentionally in the use of the trademark, it is recommended that the trademark use be started if the 2-month suspension period from the publication of the trademark application in the Official Trademark Bulletin expires and there is no objection.
The trademark registration application is made to TURKPATENT, the sole authorized body for registration, by submitting the properly filled trademark application form and the receipt showing that the official application fee has been deposited into the Turkish Patent account. Trademark registration application can be made directly to TÜRKPATENT as well as by mail. In addition, Türk Patent provides electronic signature holders with the opportunity to apply electronically.
Before Turkish Patent, it is not necessary to have a legal personality in order to make a trademark application. Accordingly, it is possible for all real and legal persons, whether residing in Turkey or not, to apply for trademark registration. It is not necessary for real and legal persons residing in Turkey to make their trademark registration application through a proxy. However, real and legal persons who are not resident in Turkey are required to carry out all kinds of transactions before Turkish Patent, including the trademark registration application, through authorized representatives residing in Turkey.
Priority Right; It is the "Priority" right that allows the applicant to precede the previous trademark applications by basing the trademark application to be made in Turkey on the first application, together with a previous trademark application in any of the countries that are party to the Paris Convention. In order to benefit from this right, the application must be made within 6 months from the application date in the country where the priority trademark application is made and the priority documents proving this application must be submitted within 3 months from the application date.
While applying for trademark registration; – Filling the information in the registration application form completely and completely, – The brand sample is clear and legible, – Writing a complete and correct list of goods and services for which the trademark is desired to be registered, – The fees foreseen for the registration application must be deposited into the account of TÜRKPATENT.
In trademark registration applications, a common classification system is applied in many countries around the world. This classification system has been developed by the World Intellectual Property Organization and has been accepted by the member states with the “Agreement on the International Classification of Goods and Services for the Purpose of Registration of Trademarks (Nis Agreement)”. Turkey also became a party to the Nice Agreement in accordance with the Council of Ministers' decision numbered 95/7094, dated 12 July 1995, and started to implement the Nice Agreement for the classification of goods and services. The Communiqué on Classification of Goods and Services numbered 2016/2 is currently being implemented by Turkish Patent. Classification of goods and services mainly aims to systematically determine the goods and services required to be included in the trademark registration and guides the applicants. While making a trademark application, it is not necessary to use the definitions determined within the scope of classification. The applicant may define the goods or services for which the trademark will be used, according to their characteristics, and specify them under the relevant class in the classification.
Yeah. Türk Patent first examines the trademark registration applications and if the submitted documents are complete or after the missing documents are completed; this time, it makes an examination as to whether the trademark desired to be registered meets the registrability criteria. This review by TÜRKPATENT is called a preliminary review based on absolute rejection reasons. Accordingly, Turkish Patent, – If the mark desired to be registered as a trademark is not distinctive, – If the mark desired to be registered as a trademark is the same or indistinguishably similar to a trademark that has been registered or applied for registration before, related to the same or the same type of goods or services, – The mark desired to be registered as a trademark; If it contains signs and designations that indicate the type, type, quality, quality, quantity, purpose, value, geographical source in the field of trade or indicate the time of production of goods, services or other characteristic features of goods and services, exclusively or as an essential element, – The mark desired to be registered as a trademark; If it contains signs and names used by everyone in the field of commerce or used to distinguish those belonging to a certain profession, art or trade group, exclusively or as an essential element, – The mark desired to be registered as a trademark; if it is one of the signs that contain the shape of the ware that emerges from its original natural structure or the shape of the ware, which is obligatory to obtain a technical result, or the shape that gives the ware its essential value, – The mark desired to be registered as a trademark; If the goods or services are of a nature to mislead the public on issues such as their nature, quality or place of production, geographical source, – The mark desired to be registered as a trademark; State coat of arms, coat of arms, logo, etc. of official institutions of the state. If it contains signs and permission has not been obtained from the competent authorities for this use, – The mark desired to be registered as a trademark; If it contains other coats of arms, emblems or insignia that are of public interest, that have become public property in terms of historical and cultural values and that the relevant authorities have not given registration permission, – If the mark desired to be registered as a trademark is the same as a well-known trademark and the owner's permission has not been obtained, – If the sign desired to be registered as a trademark includes religious values and symbols, – If the sign desired to be registered as a trademark is contrary to public order and general morality, may decide to reject the trademark registration application. On the other hand, if Turkish Patent detects the existence of some absolute grounds for refusal, which it did not take into account in the first examination, in an examination carried out later and before the trademark was registered, it may decide to reject the trademark application even at this stage.
Yeah. The fact that a trademark application has passed the first examination made by Turkish Patent based on absolute rejection reasons; It shows that there is no obstacle for the trademark to be registered in terms of being a trademark. However, it is possible to object to the said trademark application by third parties based on their priority rights. According to Article 18 of the Industrial Property Law No. 6769, trademarks that pass the formal examination made by Turkish Patent and the examination made according to absolute rejection reasons are published in the Official Trademark Bulletin and within two months from the publication of the trademark application in the Bulletin, by third parties. It is possible to object to the trademark application. In the objection made by the third parties, the priority rights of the third parties on the trademark that is desired to be registered are put forward, in particular, which cannot be taken into account by the TPI on its own. However, in addition to this, it may be possible to put forward reasons for absolute refusal, which are thought to have been overlooked in the preliminary examination made by the TPI.
Yeah. In accordance with Article 5 of the Industrial Property Law No. 6769, it is possible to register two identical or indistinguishably similar trademarks on the same or the same type of goods and services, upon submission of the notarized document showing that the previous trademark owner has consented to the registration of the application.
Yeah. The concept of “Same or indistinguishably similar brand” is arranged among the absolute grounds for rejection, and it refers to brands that cannot be separated from each other at first glance. The concept of "similar brand" is used to express the brands that are not strong enough to be understood at first glance, but which may lead to the possibility of confusion in the eyes of the consumer if used on similar or related goods. Even if a trademark application has passed the first examination based on absolute rejection reasons, it is not found to be "same or indistinguishably similar" with a trademark registered or previously applied in Turkish Patent; The previous trademark owner may request the rejection of the trademark application after its announcement in the Official Trademark Bulletin, on the grounds that the trademark application in question is similar to its own trademark.
Yeah. It is possible to appeal to the Re-examination and Evaluation Board against the decisions made by the Department of Trademarks, within 2 months from the notification of the decision. Decisions of the Re-examination and Evaluation Board are final decisions at the administrative stage, and it is possible to file an action for annulment against these decisions before the Ankara Civil Court of Intellectual and Industrial Rights, only within 2 months from the notification.
Trademark application registration procedures are finalized in approximately one year if the documents are complete and the application is not rejected or objected to. The protection period of a registered trademark is 10 years from the date of application, and at the end of this period, the protection period of the trademark can be renewed unlimitedly in 10-year periods with the payment of the renewal fee.
As a rule, trademark registration provides limited protection only for the goods and services included in the registration. Accordingly, it is possible for the same trademark to be registered or used on behalf of different businesses on different goods and services. The only exception to this is that it is not possible to register the same or similar trademarks of a well-known trademark, which has reached the level of recognition in the society, on different goods and services as well as on the same goods and services.
A well-known brand is not a concept with a definite definition, there are different definitions and different levels in this regard. In order to be able to talk about a well-known brand, a brand does not necessarily have to be a worldwide known brand. Even if a trademark is not a worldwide known trademark, if it is known by the segment associated with the goods and services for which the trademark is registered, in the country where the protection is requested, this trademark is also considered to be a well-known trademark. The following factors are taken into account in determining the level of recognition of a brand: – Trademark registration and duration of use – Domestic and International registrations – The prevalence of the goods or services on which the brand is used in the market Market share and annual sales amount – Promotional activities related to the brand – Newspaper, magazine, television, etc. of the brand. broadcasts made through media organs such as – Court report showing the reputation of the trademark, ongoing unfair competition lawsuits and the number of objections – Distinctive feature of the brand – Public opinion polls on the brand's reputation – Features of the company that owns the brand – Whether the goods or services used on the brand indicate a certain quality or status – Received documents and awards belonging to the goods or services used on the brand or the company that owns the brand – Distribution channels, import and export opportunities of the products or services that are the subject of the brand – Monetary value of a brand subject to sale – The breadth of the scope of the registered goods or services of the trademark – Density of applications similar to the trademark, whether the trademark is used by third parties in the market – Whether the brand owner is harmed by the quality of the goods or services used on the brand or the potential and actual users of the brand.
If a registered trademark, the same or similar, is used by another without the consent of the trademark owner, the trademark right is infringed. In the case of trademark infringement, the registered trademark owner may request the prevention and termination of the infringement, as well as a request for material and moral compensation for the compensation of the damage arising from the infringement. Regarding the claim for compensation, the person whose registered right has been violated may claim not only the actual damage but also the gain that he deprived due to the infringement. Three different methods are envisaged in the calculation of the deprived earnings, these are: – If the infringer did not have unfair competition, the possible income that the registered right holder could have obtained by using his registered trademark, – The gain of the infringer by using the registered trademark unfairly, – Example of the license fee to be paid if the infringer has used the registered trademark in accordance with the law with a license agreement to be made with the right owner. In addition, it is possible for the registered trademark owner to request injunctive relief to stop the infringing use. On the other hand, trademark infringement is also regulated as a crime in accordance with Article 30 of the Industrial Property Law No. 6769, and according to this, “(1) Producing goods or providing services, offering for sale or selling by infringing the trademark right of someone else by quotation or confusion. The person who imports or exports, buys, keeps, transports or stores for commercial purposes is sentenced to imprisonment from one year to three years and a judicial fine up to twenty thousand days. (2) The person who removes the mark indicating that it has trademark protection from the goods or packaging without authorization is punished with imprisonment from one year to three years and a judicial fine up to five thousand days. (3) The person who makes savings by transferring, licensing or pledging the trademark right of another person without being authorized is sentenced to imprisonment from two years to four years and a judicial fine up to five thousand days. (4) In case the offenses specified in this article are committed within the framework of the activity of a legal person, additional security measures specific to them shall be imposed.
Yeah. It is possible to stop the entry of counterfeit products carrying a trademark registered with the TPI into Turkey from abroad, with an application to be made at the General Directorate of Customs.
As a rule, it is not possible to use a registered trademark by another without the permission of the trademark owner. In addition, the Industrial Property Law No. 6769 also regulates that in very limited cases and provided that it complies with the rules of honesty applicable in the commercial and industrial fields, the registered trademark will not require the permission of the trademark owner to be used by anyone other than the trademark owner. However, even in this case, the third party using the trademark should in no way create the impression that he is the owner of the trademark or that he is related to the trademark owner in any way, and must use the registered trademark only to the extent necessary, for example, to inform the quality of his own goods and services.
Within the framework of Turkish Trademark Law, there is no obligation to use trademarks for registration. However, this does not mean that there is no need for a trademark to be used after it has been registered. In the Industrial Property Law No. 6769, a trademark that has never been used by its owner or that has been used for a short time but has been discontinued after being registered, although it has been registered, does not harm the interests of businesses that want to use this trademark by actually registering it. granted a period of one year. According to this; if the trademark is not used within five years from the date of registration or if the use is interrupted for five years; It is envisaged that third parties can file an action for annulment "due to non-use" against the registered trademark. However, even in this case, at the end of the 5-year period foreseen for use, the trademark does not automatically cease to be annulled, but is canceled according to the result of an action for annulment filed by third parties who have legal interest in the cancellation of the trademark. The use of the trademark owner within the 3 months before the lawsuit is also not taken into account.
Within the framework of Turkish Trademark Law, a registered trademark must be used seriously and in relation to the goods and services included in the trademark. Whether the use is serious or not depends on the characteristics of each concrete case. In addition, the Industrial Property Law No. 6769 states that the registered trademark will be deemed to have been used in the following cases: a) Using the trademark with different elements without changing the distinctive character of the registered trademark, b) The use of the trademark on goods or packaging for export purposes only, c) Using the trademark with the permission of the trademark owner.
Brand owners may license their marks to third parties for use, and registration of the license is not mandatory. Even in cases where there is no license registration, it is considered as brand use when it is proven that the brand is used. However, in cases where the license is not registered, in case the licensed trademark is transferred to a bona fide third party, no claim can be made against the new trademark owner.
After the trademark application is made, no changes can be made on the trademark form, name or the goods or services for which protection is requested. Only minor spelling errors can be corrected by paying the relevant fee, and changes in the list of goods or services can be made if TURKPATENT requests an explanation. Trademark application or registration owner information may change. In case the title, type or address of the trademark owner changes, these changes can be registered with the Turkish Patent by paying the relevant fees and submitting the necessary documents. On the other hand, when the trademark owner transfers the trademark to another firm or merges with another firm, these changes can be registered with the Turkish Patent by paying the relevant fees and submitting the necessary documents.
The invalidity of a registered trademark may be requested on the following grounds: – Contrary to the absolute refusal grounds, which are the basis for the first examination of the Turkish Patent – Priority right ownership, etc., which constitutes the basis for objections made by third parties. existence of proportional refusal grounds – The trademark has not been used at all within 5 years from the date of registration or the use has been suspended for 5 years, – The trademark has become a widely used name for goods and services due to the actions of the trademark owner and no precautions have been taken, - As a result of the use of the trademark by the person authorized by it, the possibility of confusion among the public regarding the nature, quality, place of production and geographical source of the goods and services for the goods and / or services included in the registration.
The invalidity of a registered trademark may be requested for all of the goods and/or services included in the registration, as well as for some of these goods and/or services. However, the partial invalidity of a registered trademark is limited only to the partial invalidity of the goods and/or services included in the registration, and it is not possible to partially invalidate the trademark by deleting one or more of the elements (such as words and shapes) forming the trademark.
No. The fact that no objection has been filed against a trademark while it is still at the application stage does not prevent the filing of an invalidation lawsuit after the trademark has been registered.
The period foreseen for the invalidation case is regulated in Article 25/6 of the Industrial Property Law No. 6769. According to this, “If the owner of the trademark knows or should have known that a later-dated trademark has been used, but has remained silent for five consecutive years, he cannot claim his trademark as a ground for invalidation, unless the trademark registration with the next date is malicious.”
Madrid System is a system that allows applicants to apply in a single office (WIPO - World Intellectual Property Office) and a single application in a total of 98 countries and European Community that are party to the system. The biggest misconception regarding the International Registration System is that a trademark is automatically considered to be registered in all countries determined within the scope of the application, after the application is made before the World Intellectual Property Office. However, after this application, the designated country offices make the necessary examination according to their own domestic legislation and decide whether the trademark can be registered in their own country. Therefore, the International Registration System is not an automatic registration system, but a mechanism that provides a single-handed tracking system in which a trademark application is made in many countries at once and then in the countries where the registration of the trademark is decided.
In order to make an international registration within the framework of the Madrid Protocol, first of all, it must be a registered trademark before the Turkish Patent or apply for a trademark. After filing a trademark application, it is possible to request registration before the countries that are party to the Madrid Protocol by making an application to the World Intellectual Property Office, on the basis of this application, even if the trademark has not yet been registered.
If the application is sent by the office of origin to the WIPO (World Intellectual Property Office) within 2 months from the date of application, it starts from the date of receipt of the application by the national office, but if the application is sent more than two months from the date of receipt by the national office, the protection period of the application is submitted to the WIPO from the date of receipt.
Meet; It is the attainment of a product or the development of a method for the solution of a technical problem in the field of industry, including the agricultural field. Patent; It is an official document given by a government agency to the inventor with the aim of giving privileges to the inventor in areas such as the sale, marketing, reproduction, protection and production of a similar invention.
An invention that provides the elements of innovation, overcoming the known state of the art and being applicable to the industry is counted as a patent in the world.
For patent protection, conditions are sought for the invention to be new, exceed the state of the art and be industrially applicable. Utility Model protection, on the other hand, is granted for inventions other than chemicals and methods that are new and industrially applicable and subject to patents. Although the total protection period of an invention is ten (10) years in the Utility Model, this protection period is twenty (20) years in total for the Patent.
A patented invention; Protects the rights of the inventor with a patent and prevents the production, sale, import and export of the invention subject to the patent without the permission of the patent owner, and in case of opposite cases, criminal sanctions are imposed on third parties.
In case the title, type or address of the patent owner changes, these changes can be registered with Turkish Patent by paying the relevant fees and submitting the necessary documents. On the other hand, when the patent owner transfers his patent right to another company or merges with another company, these changes can be registered with Turkish Patent by paying the relevant fees and submitting the necessary documents.
Design is the whole or a part of a product or the whole of the ornament on it, consisting of various elements or features perceived by human senses such as line, shape, form, color, texture, material or flexibility. The product, excluding computer programs, expresses a combined product or its parts, objects such as packaging, presentations of multiple objects perceived together, graphic symbols and typographic characters, as well as any object produced by industrial or manual means, and is among these products. said combined product is a product consisting of parts that can be replaced or replaced by disassembly. According to this, what is actually protected by design is the external appearance of a whole or a part of a product that can be perceived by human senses.
The design is about the external appearance of a whole or a part of a product that can be perceived by the human senses. As of this function, it is completely separated from the brand, which helps to distinguish a product or service from other products and services. However, since it is possible for 3D signs to be registered as a trademark, there may be some overlapping points between the signs subject to the design and the signs subject to trademark protection at this point. However, in order for a 3D sign to be subject to trademark protection, first of all, this sign must have distinctiveness for the goods and/or services for which it is intended to be registered; this is usually the case after a certain period of time. However, in order for a sign to benefit from design protection, it must be new. Patent and utility model rights can also be confused with design from time to time. However, while the patent and utility model protect a technical progress; With the designs, no technical function is protected, only the external appearance of the product is protected.
In order for the design to be protected, a design must be both NEW and DISTINCTIVE from other designs. Although these two conditions appear as a single condition from time to time, they essentially point to different points from each other. Namely; The fact that the design is "NEW" means that the same design has not been presented to the public anywhere in the world before the registration application date or the priority date. Therefore, in terms of innovation criterion, absolute innovation condition is sought. According to this; If a design is presented to the public within 12 months retrospectively from the date of registration application or priority date, by the designer or his successor or by a third party with the permission of these persons, or has been made available to the public as a result of the abuse of the relationship with the designer or his successors, and this presentation to the public does not affect the novelty of the design. The “DISCITIVE” feature is defined as the distinct difference between the overall impression a design leaves on the informed user and the overall impression left by previous designs on the informed user. In other words, in the examination of whether a design has a distinctive feature, it is checked whether this design has a significant difference from the designs available in the market in terms of general impression. In this review, emphasis is placed on the evaluation of the common features of the compared designs rather than their differences, and how much freedom of choice the designer has in terms of developing the design is taken into account. In order for a design to be protected, these two conditions must always coexist. In terms of designs of combined product parts, there are two criteria for finding the design new and distinctive. First, when said part is attached to the combined product, it must be visible in normal use of the combined product. Second, the visible features of the item must meet the requirements of novelty and distinctiveness.
While making a design registration application; – Filling the information in the registration application form completely and completely, – Inclusion of the visual representation of the design in detail, presenting views that clearly and clearly reflect the design in all its aspects in order to better understand the industrial design in three-dimensional designs. – Giving a description explaining the design subject to the application – The fees foreseen for the registration application must also be deposited and submitted to TÜRKPATENT together with the application.
You can share with us everything that you can not find in the frequently asked questions, through this area.