The Turkish Constitutional Court has ruled to annul the Article 14 of the Decree Law Pertaining to the Protection of Trademarks numbered 556 (“Decree Law”) upon the application of 2nd IP Court of Istanbul for annulment of subject provision on the ground of unconstitutionality. The subject decision of the Constitutional Court published and entered into force on January 06, 2017.
The cancelled provision of Article 14 regulated the issue of revocation of non-used trademarks and read as follows;
“If, within a period of five years following registration, the trademark has not been put to use without a justifiable reason or if the use has been suspended for an uninterrupted period of five years, the trademark shall be revoked.”
The Constitutional Court has annulled Article 14 of Decree Law on the basis of Article 91 of the Constitution by mainly stating that:
- As per Article 91/1 of the Constitution, property rights can be regulated only on the basis of a legislative act enacted through Parliament, and not on the basis of a decree law.
- A registered trademark is also a property right and Article 14 regulating a property right cannot be regulated on the basis of a decree law.
This decision of the Constitutional Court is very important in terms of its effect on Turkish Trademark Law, because the annulled article 14 of Decree Law was the only provision constituting a basis for invalidation of trademark on the ground of non-use. In 2014, the Constitutional Court had also cancelled Article 42/1(c) of Decree Law which was another provision enabling the interest parties to demand the invalidation of trademarks for non-use. Despite, as of today, it was still possible to file an action for invalidation of trademark on the ground of non-use by referring to Article 14 of the Decree Law.
In fact, December 22, 2016, The Turkish Parliament eventually enacted the draft IP law which is a comprehensive law consolidating various species of IP Law including trademarks, designs, patents etc, and this new IP law includes a provision regulating the cancellation of trademark on the ground of non-use. However, it has not come into force yet. It is obvious that until the effective date of new IP Law, there will be a legal gap regarding the non-use actions. The Constitutional Court decision containing questions as to the enforcement of on-going non use actions before IP Courts will most probably raise lots of issues and debates within intellectual property law in Turkey.