Introduction
Complaint applications regarding IP right infringements on e-commerce platforms
Examination of complaints
Objection procedures

Comment


Introduction

Turkey has updated its e-commerce regulations in line with the EU Digital Markets Act and the Digital Services Act through the publication of new amendments to the Law on the Regulation of Electronic Commerce No. 6563 (the E-commerce Law) on 1 July 2022. The amendments to the E-commerce Law impose significant obligations on e-commerce service providers (SPs) and intermediate service providers (ISPs), especially in terms of IP rights. The amendments took effect on 1 January 2023.

On 29 December 2022, a new secondary legislation was introduced: the Regulation Regarding the Electronic Commerce Intermediary Service Provider and Electronic Commerce Service Providers. The regulation prescribes additional details in relation to the obligations and rules set out under the E-commerce Law. The fourth section of the regulation sets out details relating to complaint applications with respect to the violation of IP rights.

Complaint applications regarding IP right infringements on e-commerce platforms

ISPs must remove any infringing content upon the complaint of a rights holder or its representative with respect to IP right infringement if the requirements are met. ISPs must notify both the rights holder complainant or representative and the respective SP of the removal of the content.

Complaints can be submitted to ISPs via:

  • internal communication systems;
  • the notary public; or
  • a registered email address (KEP).

An "internal communication system" is a system created to provide easy and free communication with ISPs and SPs with respect to e-marketplaces.

Rights holders or their representatives must include the following information in complaints to ISPs:

  • their contact information (ie, name, surname or trade name, Turkish identification number, address, email address and KEP, and power of attorney (for representatives))
  • the reason for the complaint;
  • evidence regarding the alleged violations;
  • the internet address of the product subject to the complaint;
  • proof of the right of ownership (ie, the registration certificate issued by the Turkish Patent and Trademark Office, the form issued by the Ministry of Culture and Tourism, or the activity certificate for professional associations within the scope of the Law on Intellectual and Artistic Works No. 5846); and
  • a statement that they are responsible for any damages that may arise if the information and documents submitted within the scope of the complaint application are groundless.

Examination of complaints

ISPs must examine any complaints received and notify the complainant rights holders or their representatives if any information or documents are missing. There is no specific time limit by which complainants must provide missing information.

ISPs must process the complaints and remove the content within 48 hours. They must subsequently notify the respective SP. SPs may object to ISPs' decisions to remove content.

ISPs will not evaluate any further complaints submitted by a third-party rights holder with respect to the same infringing content unless the rights holder submits a new document that proves the right of ownership.

Objection procedures

SPs may object to complaints regarding the violation of IP rights when their product or content is removed from publication. Such objections may be made to ISPs in the same way in which IP rights holders may make complaints to ISPs.

SPs must prove that the content or product does not infringe the IP rights of the complainant in their objections. The genuine nature of the removed product should be proved through invoices or alternative documents, or contracts which show that the rights holder or the persons who put the product on the market authorised the SP, considering the principle of exhaustion.

SPs must also provide a declaration of responsibility for any possible damages in parallel with complaint procedures. If any information or documents are missing, the objection will not be examined and the ISP will notify the SP.

There is no specific deadline within which an SP must file an objection. However, if it is clear that the objection is justified, the ISP must republish the content within 24 hours from receipt of the objection. The parties may also pursue legal routes against infringement allegations and the results thereof.

Comment

The amendments introduce an obligation to use a notify and remove mechanism for IP right infringements.

The most-discussed part of the amendments is the regulation tool, which gives ISPs the right to decide on the IP right infringement. ISPs will thus act like a judge in terms of violation allegations. Some believe that IP right infringement claims should be subject to court actions and not to a simple evaluation system carried out by ISPs.

However, this regulation has a comprehensive and intricate structure in terms of its formulation. The marketplaces will play an active role in the fight against IP right infringement, despite some uncertainties with respect to the amendments. Given the limitless potential for counterfeits in the digital world, the amendments are expected to decrease the workload of the courts.

For further information on this topic please contact F Burcum Evgin at Deris Attorney At Law Partnership by telephone (+90 212 252 6122) or email ([email protected]). The Deris Attorney At Law Partnership website can be accessed at www.deris.com.tr.

Alara Biber, junior associate, assisted in the preparation of this article.