Trademark |
Industrial Design |
Patent / Utility Model |
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What is Trademark?
Trademarks are the signs of the goods and services provided by any enterprise to make them distinct from those provided by other enterprises. Words, letters, numbers, drawings, pictures, figures, colours, logos, labels and a combination of these used specifically for the purpose of distinction of such goods and services may be accepted as trademark.
Protection of the trademarks
The trademarks are protected mainly through registration. Registration of a trademark makes available a sound protection against particularly disputes arising from similarity or identical aspects, which may lead to confusion.
Many people consider that registration of the commercial title and the commercial company into the trade registration offices means simultaneous protection of the trademark. This is the most common misperception. It is important to comprehend the differences between the commercial titles and the trademarks. Commercial title is the full name of your company e.g. “Abc Kimya Sanayi Anonim Şirketi” etc and identifies your company. Such titles generally end with “Ltd. Co.” or“Corp.”, which defines the legal structure of the company. The trademark is the sign, which makes your product/products different than others. Any company may have various trademarks. For example; “Abc Kimya Sanayi Anonim Şirketi” may use different trademarks for the different products marketed by the said company. Such trademarks may not only be similar with the commercial title (e.g. “ABC”) but also a totally different wording than the commercial title (e.g.XYZ).
What rights are acquired through registration of the trademark by the trademark holder?
•Registration of a trademark shall grant the holder of the said trademark the right of sole use of the trademark and protect unauthorized use of such trademark.
• It grants the right of unauthorized use of any mark which may distort the distinctive character of any registered trademark, provide unfair advantage through the creditability of any registered trademark, or lead to any confusion with respect to the similar or identical goods and services which fall within the scope of the trademark registration.
•Any registered trademark may be assigned to another, inherited to the successors, licensed for utilization rights, pledged or denominated as guarantee.
• The trademarks not yet registered cannot enjoy the rights and protection through the law pertinent to registration and protection of trademarks.
The basic reasons obstructing the registration of a trademark
It is important to take into account the reasons, which may obstruct the registration of a trademark. The filed applications for registration of a trademark shall be rejected in the following cases, which are named as “Absolute Reasons”.
• The signs with no distinctive feature,
• The signs similar or identical with the previously registered or already filed trademark falling in the similar or identical scope of the goods or services,
• The signs indicating type, sort, feature, quality, objective, value, geographical sources for the goods or services for which registration is sought.
• The signs which allow differentiation of any occupation and members of the artistic or commercial groups or used commonly by any commercial community along with the trademarks which include the names exclusively or principally,
• The signs figuratively indicating the good or its essential value which is stemming from the natural structure or as a result of the technical processes of the product to be registered,
• The marks misleading the public in view of the quality, quantity or place of production, geographical source of the goods or services.
• Country flags, military or dynasty armorial bearings submitted to WIPO International Bureau, seals and emblems of the countries and the international organizations,
• Words and signs representing religious values and symbols,
• Signs and words detrimental to public order and general ethical rules can not be registered as a trademark.
The signs on the trademarks
It is not a must to use the symbols such as ®, TM, SM or similar symbols and they do not provide additional protection. In addition, use of such symbols may be the proper way to inform the others of the fact that the said sign is a trademark and to warn the violators and the imitators. TM symbol shows any sign that is a trademark while ® is used when the trademark is registered. For service marks, SM symbol is used.
Is registration of a trademark a must?
Although registration of a trademark is not a must, registration is the most significant means of evidence on the trademark and of the hindrance of the trademark violations. Therefore, registration of the trademarks in the countries where commercial activities are established is highly recommended.
Similarity search prior to application
The trademark for which an application for registration is to be made, may be searched at the earlier stage whether it is previously registered in another person\'s name or any application made therefore.
Acquiring the right to register a trademark
Natural and Legal persons residing within the borders of the Republic of Turkey and legal persons dealing with commercial activities in the Republic of Turkey or any such persons with commercial attribute, Paris Convention and World Trade Organisation, and legal persons dealing with commercial or industrial activities in the countries who are the parties to the Establishment Contract or residing in such countries and the citizens of the Member Countries,
Period of protection of a trademark
Any registered trademark shall be protected for a period of 10 years starting from the date of filing application. It is also possible to protect the trademark for a limitless time by renewing the same in each 10-years period. The request for renewal should be made within 6 months prior to expiration of the protection period. Referring to the trademarks for which no request for renewal is made within the stipulated period, such a request may be made within 6 months subsequent to expiration of the 10-years period provided that additional fee is to be paid.
Expiration of trademark rights
The rights on any registered trademark arising from registration shall expire in the following cases:
• No renewal request after 10-years protection period,
• The trademark holder waives from trademark rights,
• Nullity of the trademark by the courts
Requirements for utilization of the trademark
The Judicial Decree in Effect of Law numbered 566 for the Protection of the trademarks stipulates that if the trademark is not used for a period of 5 years uninterruptedly, then it shall be the reason for cancellation. Consequently, in trademark applications for registration, only the intended production or presentation of the goods and services should be specified. Registration of a trademark, which includes goods and services that are not to be used shall unnecessarily increase the registration costs and lead to cancellation of the trademark.
Nullity of the trademark
• The trademarks which are not used for a period of 5 years from the date of registration,
• The trademarks which have become a generic name,
• The trademarks with misleading nature due to its utilization,
• The trademarks registered in spite of an obstruction for registration,
May be nullified by the decision of the courts.
Violations of the Trademarks Rights
The registration of any trademark does not provide any additional protection but solely functions as the determination and registration of a right. So, in case of unfair utilization of the trademark by the others and violations of the trademarks, the holder of the trademark should monitor such unfair utilization and prevent the violations based on the rights stemming from the registered trademark through the judicial procedures at the competent courts.
Penalties to be applicable in case of violations on the trademark rights
Depending on the nature of the offence, imprisonment for a period of 1 to 4 years, fine amounting to 15.570 to 51.150 New Turkish Lira (TL), and closure of the business place not less than 1 year and prohibition from commercial activities are the applicable penalties.