4 Turk. Com. L. Rev. 3 (2018)

handle is hein.journals/turkclr4 and id is 1 raw text is: 







         The Use of the Genuine Right Ownership

      Principle in Combating Trademark Squatters



             by UGUR AKTEKIN and HANDE HANQAR QELIK*



                                     ABSTRACT

As  in many jurisdictions, it is quite often the case in Turkey that certain entities -known as
'trademark  squatters'- search for foreign trademarks that are not yet registered in Turkey
and  then register those trademarks in their own  name  in order to sell them or disrupt
the legitimate business of the genuine owner of the trademark. Turkish  Trademark  Law
provides  various legal tools in combating against such  entities and one of them  is the
principle of 'enuine right ownership'. Turkish case law has developed over recent decades
with  respect to the principle ofgenuine right ownership and it is fair to say that the rights of
the genuine owner  of a trademark are strongly protected, provided that prior rights or the
badfaith  of the trademark squatter are sufficiently established by the supporting evidence.


The   main  principle under  the Turkish  trademark  system  is that in order  to obtain
trademark   rights on a certain sign,' it must be registered in accordance with the Turkish
Industrial Property Code  (the IP Code) No.  6769 with theTurkish Patent andTrademark
Offices (the Office). Indeed, Article 7(I) of the IP Code   states that 'protection for a
trademark   under this Law  is obtained by registration' and Article 7(2) states that 'the
rights granted to registration belong exclusively to the trademark owner'.

      Accordingly, under the IP Code it is explicitly set forth that in order for a trademark

      * UgurAktekin is apartner in Gun + Partners and he is the co-head of the Intellectual Property Practise
 Group. Hande Hangar (elik is also a partner in Gin + Partners.
     i  The term 'sign' used here covers all possible signs, i.e. words, including personal names, or designs,
 letters, numerals, colours, the shape of goods or of the packaging of goods, or sounds etc. that are capable of
 registering as trademarks.
     2  The Industrial Property Code (IP Code) No. 6769 entered into force on January Jo, 2017. Before
 the enactment of IP Code, Turkish Trademark Law had been regulated under Decree Law Pertaining to the
 Protection of Trademarks Number 556 (Decree Law No. 56) since 1995. While IP Code introduced some
 important changes strengthening the trademark protection, most of the provisions remained the same. The
 provisions regulating the genuine right ownership principle, which is discussed in this article, are the same
 both in Decree Law No.556 and in the IP Code. So the case law obtained during the term of Decree Law
 No.556 is still applicable. For more information about the IP Code please see http://gun.av.tr/tr/new-ip-code-
 enters-into-force-2o17-will-be-the-year-of-ip-rights/.

     3  TheTurkish Patent and Trademark Office is the new official name adopted by the IP Code for Turkish
 Patent Institute. The official abbreviation of the Turkish Patent and Trademark Office is 'TurkishPatent'
 as per the IP Code but in this Article we will call it simply 'the Office'. More information regarding the
 functions of the Office in terms of trademark opposition can be found in <http://www.turkpatent.govtr/
 TurkPatent/Plang=en>.


208 TURKISH COMMERCIAL LAW REVIEW, Vol 4, No. i, Summer 20I8


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