Trademark Infringement Cases in Turkey
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A registered trademark owner may ask a Civil IP Court to make a
judgment ordering the defendant to stop all infringing activities
and make compensation for all damages. The judgment of the IP Court
may also include the confiscation and destruction of counterfeit
products, along with machinery and other equipment used to produce
the counterfeits. Interim injunctions may also be sought before or
during the civil infringement cases. The owner of the IP right may
seek a preliminary ex parte injunction. Evidence must be very strong
to convince the judge to give such a decision without listening to
the defendant. However, the courts mostly assign a special hearing
date to give a decision on the interim injunction. It is almost
impossible to receive an exparte injunction apart from in
unquestionable trademark infringement cases.
The court may give an interim injunction ordering the suspension
of the infringing acts and seizure of the counterfeits wherever they
are found in the territory of country, including customs. The
interim injunction remains valid until the end of the main case:
then the judment permanently supersedes the injunction.
The interim injunction does not order a one-time seizure like a
police raid in a criminal proceeding. As it can be enforced several
times in several places, the interim injunction of a civil court
ordering the cessation of all infringing acts and the confiscation
of all counterfeits may be recognized as the most satisfactory
decision in a Turkish IP litigation.
Compensation for material and moral damages can only be requested in a civil proceeding. The plaintiff has to choose one of the three options described in decree laws for the calculation of his material damages. The most frequently chosen option is the income of the infringing party when using the owner’s IP right. Material damages may also be calculated according to the possible income of the right holder if the infringement did not exist and the license fee if the infringing act was lawful.
Criminal infringement actions
According to the new Articles of the criminal procedure, IP related criminal actions are defined as public actions to which the IP right holder can joined. The procedure starts with a complaint filed before the public prosecutor, including the request for the confiscation of infringing products. If the prosecutor and/or the judge are convinced of the infringement, they order the police raid for the confiscation of counterfeits.
Police raids as part of criminal proceedings may be recognized as the quickest, and one of the most effective, remedies, along with the interim injunction to stop the infringement. An order for seizure is initiated within one or two days by means of provisions describing the complaint as urgent. In the determination of evidence procedure, the infringer will be informed and will have the chance to hide counterfeits before subsequent raids. Contrary to this disadvantageous situation, convincing the public prosecutor and the criminal judge to order the police raid is a better path for the disclosure and confiscation of counterfeits.
Thereafter, the public prosecutor files a criminal lawsuit before the IP Criminal Courts and the accused may face up to four years imprisonment and fines. Most criminal cases wait for the judgment of invalidity lawsuits in Turkey. The person accused of an infringement most probably files a lawsuit for the cancellation of the related IP right. The criminal court cannot inflict a penalty until the civil court’s judgment. If the civil court invalidates the registration of the right holder, there will no longer be an offence.
That is why the criminal judges wait for the other related invalidity actions, especially for design and patent issues. Therefore, it can be said that the time period for criminal proceedings mostly depends on the civil actions.
Our patent & trademark attorneys are licensed to practice before Turkish Patent Institute to represent our clients' all types of intellectual property rights; including applications, registrations, and oppositions. Our IP litigation attorneys render patentability and patent, trademark, and copyright infringement opinions; litigate to protect intellectual property; handle arbitration, mediation, and other litigation alternatives; and negotiate licenses, franchising, and similar business transactions to maximize the value of such property.
