Enforcement of rights
Turkish regulation gives an efficient enforcement process for the security of IP rights. Typically, the initially phase for enforcement is pinpointing an IP infringement. The moment an infringement has been decided, it is advisable to ship a stop-and-desist letter from a notary community as this may perhaps lead to an a lot easier and faster aid for the IP operator.
If infringement continues or if an IP proprietor would like to go ahead with enforcement as the 1st step, it is probable to ask for the perseverance of evidence from civil courts or request search warrants from felony courts to perform raids and protected proof.
i Possible venues for enforcement
Beneath Turkish regulation, it is feasible to implement IP rights ahead of the legal law courts and civil law courts.
In terms of civil law security, IP infringement steps are filed prior to the specialised civil courts of industrial and IP rights in Istanbul, Ankara and Izmir. In other towns, a single of the regular civil courts (if there are extra than two courts the 3rd civil court, normally the to start with civil court) is assigned as a specialised IP court docket.
It is also feasible to implement IP rights before distinct felony courts of industrial and IP rights in Istanbul, Ankara and Izmir for circumstances where the laws stipulates imprisonment or a judicial monetary penalty for infringement of a sure IP ideal. In other cities, a person of the regular criminal courts (if there are extra than two courts the 3rd prison court docket, if not the 1st criminal court) is assigned as a specialised IP court.
It is doable that any products or products that infringe IP rights may perhaps be confiscated by the customs authorities for the duration of their import, export or transit. The customs authority, without the requirement of a courtroom or general public prosecutor buy, may confiscate any items that breach IP legal rights and notify the IP proper operator later on to abide by the up coming procedures these kinds of as the initiation of a civil scenario or the acquiring of an injunction.
ii Needs for jurisdiction and location
Turkish courts have jurisdiction in IP infringement scenarios if both the IP appropriate is registered in Turkey, the defendant resides in Turkey or the tortious act was committed in Turkey. According to Turkish regulation, if the position exactly where the tortious act was committed is not the location where by the hurt has occurred, the law of the condition in which the problems has transpired shall govern.
The relevant jurisdiction in Turkey might be a single of the following:
- the common domicile of the IP rights holder
- the area where the infringement was committed or
- the put wherever the act of infringement created penalties.
iii Getting appropriate evidence of infringement and discovery
Below the Turkish Civil Procedural Law, the stress of evidence lies on the claimant. Thus, it is very critical to obtain pertinent proof just before initiating a lawsuit.
A single of the methods that is greatly used is the resolve of evidence, wherever, by order of a court, an evaluation can be built with industry experts or a decide and proof can be gathered. This assessment typically involves going to a premises to doc the predicament to be employed as proof.
A further approach, which can be utilized in conditions the place IP infringement may end result in legal sanctions, is obtaining a search warrant and inquiring for an expert evaluation. For this technique, the legal rights holder applies to the public prosecutor, requesting that the prosecutor ask for a lookup warrant from the magistrates’ courtroom. If the magistrates’ courtroom accepts the general public prosecutor’s request, the general public prosecutor appoints an expert and orders the research warrant to be executed with the law enforcement.
Other than those methods, any lawfully obtained proof may be utilized in courts and these may perhaps be buys manufactured from the seller of counterfeit goods, pertinent payment slips, viewpoints attained from laboratories, etc.
iv Trial determination-maker
In accordance with Turkey’s provision for unique IP courts, the judges for IP circumstances are experts. On top of that, technological expertise is also extremely important and in pretty much all scenarios, the choose asks for an expert assessment from a courtroom-appointed professional or court-appointed specialist panel. As a end result, the skilled report is a considerable ingredient of the judicial approach. There is no jury demo in Turkey.
v Composition of the trial
Civil treatment in Turkey is predominantly based mostly on crafting. The briefs of the parties and the published skilled report are the most considerable paperwork.
Ahead of the demo, the claimant delivers the claim petition to the courtroom and the defendant responds to it with a reaction petition. Later on, secondary petitions are furnished to the court by the claimant and defendant respectively. All proof, promises and defences of events need to be submitted to the courtroom at this phase with their respective petitions. In principle, admitting extra evidence or bringing new claims and defences is not permitted less than procedural legislation after this stage has been concluded.
During the proceedings, the choose will listen to the parties on the other hand, for the reason that trials are based mostly on the penned paperwork submitted to the court docket, the listening to is usually utilised as a instrument to stage out some of the essential difficulties for the decide to focus on.
IP litigation depends on documentary proof furnished by the get-togethers or the expert report acquired by the court docket. Even though it is doable to consider witness statements, it is not the common practice in IP litigation and witness statements almost never preclude documentary proof.
There are specified minimum needs for a doc to be approved as evidence in advance of the courtroom. For instance, all agreements associated to the transfer of copyrights need to be in creating.
Patent and trademark security helps prevent third parties from featuring or earning readily available merchandise or goods that are the subject issue of the patent or are branded with that trademark.
The most widespread defence in Turkey is that the challenged trademark has no unique character or is deceptive or descriptive.
In Turkey, as a defence, the defendant can also assert to be the prior legal rights holder or that the trademark owner has not been employing the trademark for a period of time of at the very least 5 a long time. The defendant can file a separate invalidation or revocation action on the grounds of non-use or becoming the prior user.
The theory that a suitable can be missing by remaining silent can also be made use of as a defence. The defendant can assert that the trademark proprietor is performing in undesirable religion by filing the infringement claim soon after a prolonged period of time of tolerance.
In a style infringement scenario, the defendant may perhaps argue that the registered structure should really be cancelled and that the use of the layout was a technological requirement or for individual use, or for an experimental, academic or maintenance objective.
In Turkey, the most widespread defence towards infringement claims is submitting an invalidity action from the patent.
A defence relating to prior-user rights can be also lifted as the patent proprietors do not have the right to avert persons from employing the creation if they commenced to use it in superior religion just before the software date.
The defendants can also raise an exhaustion defence, which is in essence an exemption to patent infringement. The launch of a solution bearing an IP right wherever in the planet is ample for the exhaustion of the IP appropriate in Turkey.
The Regulation on Mental and Artistic Is effective stipulates particular circumstances in which use of copyrighted get the job done devoid of the legal rights holder’s authorization does not represent copyright infringement. Typically utilized exceptions are:
- particular use
- use for instructional functions in educational facilities or other instructional establishments
- use under ‘freedom of quotation’
- influential use to make an first and impartial get the job done
- use for explanations of community order or in the interests of the neighborhood and
- expiration of copyright.
viii Time to first-degree final decision
In most instances, it is attainable to get a initially-stage choice in an IP infringement situation or other dispute within just 18 to 24 months. This term features an professional examination as well.
The remedies obtainable in Turkey involve:
- the cessation of the infringing functions
- the confiscation or destruction of the infringing products and solutions and the products and equipment made use of to produce the merchandise
- payment for product and moral injury and
- the publication of the court’s determination.
Preliminary injunctions are also readily available in Turkey right before or in the course of the substantive proceedings. The claimant will have to prove that:
- the claimant is the legal rights holder
- the claimant’s legal rights are being infringed or there is a significant chance of infringement and
- the claimant might endure irreparable harm or injury.
The rights holder might use for a preliminary injunction for the cessation or prevention of the infringing pursuits, as perfectly as for seizure of the infringing merchandise.
There are no prison solutions for style and patent infringements. Nevertheless, for trademark and copyright infringements, felony therapies, such as imprisonment and fines, are regulated.
x Appellate review
In Turkey, last selections of the courts of first occasion can be appealed just before the district courts, and the selections of the district courts can be appealed right before the courts of attraction. An charm does not routinely prevent the execution of the final decision and the suspension of the execution need to be asked for alongside one another with the enchantment. Attraction proceedings last between 18 months and two decades. With regard to preliminary injunctions, district court docket selections are last and can’t be appealed in advance of the court docket of attractiveness.
xi Possibilities to litigation
As of 1 January 2019, mediation is required for IP-related disputes pertaining to receivables and payment statements. Having said that, there is no restriction on implementing mediation to other disputes as well.
IP-associated disputes can also can be resolved by arbitration. Less than the Turkish Civil Procedure Law, arbitral choices are executable with no needing any judicial approval or final decision.
Alternate dispute resolution techniques have substantial strengths, these types of as the arbitrators’ skills, the confidentiality of the proceedings and the adaptability to adapt the proceedings to different conditions.