Zeynep Seda Alhas Atahan Erkul February 21 2023 Court of Cassation decision on search and seizure orders strengthens protection for IP owners Gün + Partners | Litigation - Turkey Zeynep Seda Alhas, Atahan Erkul Litigation IntroductionFactsThird Criminal CourtFourth Criminal CourtCommentIntroductionThe Turkish criminal complaint route against counterfeits is very effective. However, several criminal courts have become increasingly hesitant to grant search and seizure warrants. The Istanbul courthouse is the most problematic courthouse in this respect and has been for some time. It is a particularly important courthouse as its jurisdiction covers significant locations for brand owners, including Grand Bazaar, Taksim and Tahtakale.The criminal courts of the Istanbul courthouse have been rejecting search and seizure warrant requests, without any concrete or satisfactory justification, for quite some time. Various law firms involved in the practice have been collaborating with non-governmental organisations and meeting with the Turkish Ministry of Justice to solve this long-standing practice.On 23 September 2022, the Fourth Criminal Court of the Istanbul courthouse accepted the complainant's objection against a decision of the Third Criminal Court to reject a search and seizure warrant request, based on a recent non-published Turkish Court of Cassation decision,(1) and granted a search and seizure warrant. The Court of Cassation's decision was issued by the 19th Criminal Chamber on 21 January 2021 and now constitutes an important precedent for brand owners.FactsIn the conflict, the brand owners filed a joint criminal complaint before the Istanbul Public Prosecutor's Office and the specialised IP prosecutor requested a search and seizure warrant from the criminal court on duty. The evidence in the file included:a test purchase from the infringer with a receipt; andan expert opinion confirming the counterfeit nature of the purchased goods.Third Criminal CourtThe Third Criminal Court rejected the search and seizure request, stating that "there is no objective and convincing evidence to create reasonable doubt as to the crime, which is necessary for granting a search & seizure warrant". The Court also specified that the expert opinion could not be deemed to be objective since it had been brought before the court by the complainants.Fourth Criminal CourtUpon the complaint's objection, the next criminal court – namely, the Fourth Criminal Court – took over the matter. In accepting the objection and granting a search and seizure warrant, it referred to the above-mentioned Court of Cassation decision and found the submitted evidence to be sufficient. The Court determined that there was enough reasonable doubt to allow a raid to be conducted at the address, which led to the seizure of hundreds of counterfeit items and the prevention of an ongoing crime.CommentIn the conflict subject to the Court of Cassation's precedential decision, the complainants could not file a receipt or invoice confirming where the goods were purchased from. Instead, they filed an expert report that confirmed the counterfeit nature of the samples purchased without a receipt, and an undercover police invesFtigation was ordered by the local prosecutor's office, which also confirmed the ongoing sales at the relevant address. The Court of Cassation's Chamber determined that the expert report could be taken into consideration as sufficient evidence for "reasonable doubt" as the undercover police investigation minutes also supported the complainants' claims. The Chamber also specified that the brand owners would not file complaints against sellers of genuine products, as this would not be in line with the ordinary course of business.The reasoning of the Court of Cassation's decision was well prepared and basically emphasised that brand owners' complaints must evaluated in a broad manner – it is not logical to expect them to file complaints to seize originals. This does not mean that the criminal courts should not seek further evidence (eg, receipts and police investigation reports) to back up brand owners' complaints, but direct and unreasoned refusal decisions of the criminal courts are no longer to be acknowledged.Even though brand owners might have had some unpleasant experiences during criminal proceedings in recent years, this Court of Cassation decision has already started to have an impact – several search and seizure warrants have since been obtained from the Istanbul courthouse. This also shows how important it is to continuously seek a better IP ecosystem and practice.For further information on this topic please contact Zeynep Seda Alhas or Atahan Erkul at Gün + Partners by telephone (+90 212 354 00 00) or email ([email protected] or [email protected]). The Gün + Partners website can be accessed at www.gun.av.tr.An earlier version of this article was first published by ManagingIP.Endnotes(1) No. 2020/1872 and 2021/318.