Turkey was waiting for a long time to enact a unified and one single code instead of the numerous Decree-Laws regarding the protection of Industrial Property Rights; namely Trademarks, Patents, Geographical Indications and Industrial Designs. After a long wait, the Law No. 6769 on the Protection of Industrial Property Rights ("Industrial Property Code") eventually has entered into force on January 10, 2017 by being published in the Official Gazette.

The Purpose of the Code 

• The Law No. 6769 aims to regulate the applications for the industrial property rights, the registration process, post-registration transactions and legal and criminal sanctions caused by the infringements of these rights within the scope of a very single code and meanwhile, to simplify all the proceedings covered by Decree-Laws No. 551, 554, 555 and 556 until now.
• The Law helps Turkish Law to harmonize with the terminology of EU IP Law and the recent developments within. 
• The Code also seeks to find a clear solution for the legal gaps arising from the annulment decisions of the Constitutional Court on the various criminal provisions provided in the Decree-Laws, which shall constitutionally be regulated by statutes/codes. Accordingly, the Law No. 6769 contains all the criminal provisions and sanctions in a systematical way. 

Hereinafter, the most significant changes and amendments within the provisions of the Code are to be pointed out:

Common Provisions

• The Industrial Property Code changed the name of the “Turkish Patent Institute” to the “Turkish Patent and Trademark Office” (Türk Patent ve Marka Kurumu). Contrary to the principle of “national exhaustion” of the IP rights in the abrogated decrees, the Law also adopts an "international exhaustion system”. 
• In an infringement action brought by a priority right holder, a right holder of a trademark/ patent/ design can no longer put forward its registered right as a defense. In other words, even if a right is registered, infringement may take place. 

Trademarks 

• The Code has regulated for the first time in Turkish Trademark Law “co-existence principle”. Accordingly, in order to prevent Turkish Patent and Trademark Office from refusing ex-officio the identical or indistinguishably similar trademarks (as an absolute ground for refusal), “co-existence agreements and letters” can be concluded and will be enforceable, thus the principle of uniqueness for trademarks will be no longer in force. 
• Opposition period for trademarks has been shortened from three months to two months. In this way, prosecution of them will be certainly quicker.
• Signs that include geographical indications cannot be registered as a trademark.
• Moreover, the “graphical representation criteria” for signs to be registered as a trademark have been amended in order to be in accordance with the requirements of the EU Trademark Directive.
• The Law also re-introduces the protection of well-known trademarks, which was recently revoked by the Constitutional Court, within the meaning of the repeating Article 6 of The Paris Convention as a relative opposition and invalidation ground.
• Possibly the most crucial change in the Trademark Law area is that, instead of IP Courts, the Turkish Patent and Trademark Office will be competent for “non-use actions” by this Code. Nevertheless, pursuant to Art. 192 of the Code, the effective date of this provision has been postponed for seven years. The aim of this postponement is said to enable the relevant authorities to organize themselves for such a major change. Therefore, until 2024 Turkish IP Courts will continue to deal with the cancellation actions due to non-use.  

Geographical Indications

• The Code regulates that the applications for the geographical indications and traditional product names are to be published in the “Bulletin”, thus the publication fees, which constitute the biggest part of the registration expenses, have been abolished. 
• The Code also accepts traditional product names together with geographical indications and regulates the protection of the traditional product names by registration. 
• Besides, the reporting period for the supervision of geographical indications has been shortened from ten years to one year, in order to strengthen the control mechanism. 
• The registered geographical indications or traditional product names will be necessarily used with the emblem (logo) on the product or packing.   

Designs

• According to the name of the 3rd book, the term of “Industrial Designs” has been changed to “Designs”, pursuant thereto all designs will be protected, whether they are industrial or not. 
• Additionally, the Code adopts novelty examination for the design applications, which will be carried out ex-officio by The Turkish Patent and Trademark Office. The result of this examination shall be determinant whether to publish the application or not. 
• In compliance with Article 11 of the Council Regulation on the community designs, the protection for unregistered designs has also been initiated within the Code, however, the scope of protection is limited, namely only copy protection. 

Patents 

• The Law No. 6769 adopts regarding the Patents such a breaking development that unexamined patent system has been abolished, which could not provide the right holders with an effective protection. 
• All criminal sanctions concerning patent infringements have been removed. The Code only regulates the crimes against the trademark. 
• Furthermore, in compliance with the Article 101 of the European Patent Convention (EPC), the Code initiates an opposition system following granted with a patent. According to this system, patent holders are entitled to amend their patents during the opposition phase, after they are first granted with the patent. 

As a conclusion, as indicated in the previous sections, the Industrial Property Code has been formulated in accordance with EU laws and practices and therefore, will be a vital step in the EU harmonization process. The Code is also expected to fill the gaps arising from the annulment decisions of the Constitutional Court on the Decree-Laws and to ensure an effective protection for IP right holders.

Dr. Gökce Uzar Schüller, Attorney at Law 
Munich and Istanbul

Cigdem Ileri, Trainee
Munich