capture of imitated trademarks at the customs in Turkey
Entry of Goods under an Imitated Trademark in the Customs Area in terms of the Turkish Law;
Shipment of goods under an Imitated Trademark to the customs for export from Turkey or shipment to the customs for importation from abroad to Turkey constitutes a trademark breach in accordance with the Turkish Law.
Violation of the trademark right involves “selling, distributing or otherwise placing in the commercial field any products carrying a trademark used through violation although they know or should know that the trademark is imitated by using the trademark or any one which is confusingly similar to it or placing them in the customs area, making them subject to a process or usage approved by the customs for these purposes or holding them for a commercial purpose” as per article 61/c of the Trademark Law No. 556 and “placing a product carrying the mark in the customs area, making them subject to a process or usage approved by the customs” as per article 9/c of the Trademark Law No. 556.
Article 3 of the Turkish Customs Law No. 4458 considers “making a product carrying an imitated product subject to a process or usage approved by the customs” as a violation of trademark.
Thus, legal action may be initiated against all imitated goods at the Turkish Customs and undergone any official process.
Status of Imitated Trademarks in Transits in terms of the Turkish Law;
Transit is shipment of a product shipped from abroad for transportation to another country without being placed on the Turkish domestic market.
Legal status of imitated trademarks in cases of transit as disputed recently but this issue has been finalized by the amendments to the Turkish Law.
“Making an Imitated Product Subject to an Official Process in the Customs” is sufficient for legal sanctions in accordance with the Turkish Trademark Law.
“Transit Regime is a Process Approved by the Customs” in accordance with article 3/15-b of the Turkish Customs Law and, in addition, legal sanction may apply to products under an Imitated Trademark even during Transit in accordance with the provision of article 77/b of the Trademark Law No. 556 regarding “seizure and retention of anything produced or imported in violation of the trademark right within the boundaries of Turkey or in any place where they locate such as customs and free port or zone etc.”
Legal Responsibility for Goods Captured in the Customs in terms of the Turkish Law;
The person who is responsible for imitated trademarks seized in the customs has not been clearly regulated in the law in accordance with the Trademark Law No. 556 but the person who is legally responsible must be determined pursuant to the Turkish Code of Obligations and Turkish Commercial Code.
Essentially, legal responsibility for imitated trademarks seized in the customs belongs to such persons/firms producing, selling, distributing the product and shipping it to the customs.
Furthermore, the Turkish Supreme Court (Court of Appeal) holds customs brokers and agents conducting customs procedures of products under an imitated trademark, keeping bill of lading, submitting declarations responsible.
Regulation on Indemnity due to Imitated Trademarks Seized in the Customs in terms of the Turkish Law;
The Supreme Court (Court of Appeal) has many decisions conflicting with each other regarding if material and spiritual indemnity is to be required for imitated trademarks seized in the customs in terms of the Turkish law.
The Supreme Court concluded in some of its decisions that any goods under an imitated trademark seized in the customs must have been placed on the Turkish market for claiming material and spiritual damages.
It did not make a claim for damages conditional upon an act of placing imitated trademarks on the domestic market in some of its decisions.
The Supreme Court has issued such decisions stating that responsible persons must pay indemnity although goods seized in customs have not been placed on the Turkish domestic market or even have been destroyed in recent years in parallel with the increase in trademark conscious.
Considering the dynamic and continuously changing structure of the Turkish Trademark Law, it would provide a great benefit to get support from Trademark and Patent Attorneys who are experienced and follow up developments in order to get the best result in trademark, patent actions to be filed.
ELTUTAN Law & Patent Office
Eltutan Patent Office was established by attorney Murat Eltutan and his colleagues in İstanbul, Turkey in 1996.
Our firm provides legal services specializing in intellectual property law and Trademark- Patent- Industrial Design registration procedures for domestic and international clients.
Our firm performs protective law consultancy with its expert team members. Thus, it provides services while keeping our clients in a lawful and fair environment and maintaining their judicial safety.
We do not give legal service only after we encounter problems but we work in a way to foresee and prevent problems to emerge, and to give service of conciliatory consultancy.
You Can Consult Us for Your Clients’ Trademark, Patent, Industrial Design Registration Prodecures and Questions of Law in Turkey.
Attorney Emine Artar TURKISH – ENGLISH
Tel: +90(212) - 272 28 00 Fax: +90(212) - 274 61 46
E-mail: [email protected]