According to the Industrial Property Code (6769), which has been in force since January 10 2017, the following acts constitute trademark infringement: "Manufacturing, providing services, offer for sale, selling, importing, exporting, purchasing for commercial purposes, holding possession, transporting and storing for commercial purpose."
The Industrial Property Code enables a registered trademark holder to initiate a criminal action against a third party's infringing activity. Rights holders initiate the action by filing a complaint before a local public prosecutor. Accepted complaints are referred to a general criminal court, which can issue a search and seizure warrant. These warrants allow the police to search for and seize counterfeit products.
Search and seizure warrant requests are evaluated by criminal court judges who are not IP specialists. Upon reviewing the complainant's claims, the court either approves or rejects the warrant request. Objections to court decisions may be filed before the same first-instance court, but not before a specialised criminal IP court.
According to Turkish case law, the criminal courts require infringement claims to be supported by objective and convincing evidence. Search and seizure warrants may be issued even where there is reasonable doubt over the existence of evidence; however, 'reasonable doubt' is not legally defined.
Given the fact that non-specialised judges evaluate search and seizure warrant requests and the broad interpretive scope of 'reasonable doubt', inconsistent decisions are common in practice.
To build an effective criminal action, rights holders should prepare by:
- conducting a detailed investigation;
- drafting a simple and clear complaint petition;
- collecting concrete evidence; and
- planning the timing of the complaint and subsequent raid after the warrant is issued.
For further information on this topic please contact Tugçe Güven or Serra Coral at Deris Attorney At Law Partnership by telephone (+90 212 252 6122) or email (firstname.lastname@example.org or email@example.com). The Deris Attorney At Law Partnership website can be accessed at www.deris.com.tr.
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