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The 1st paragraph of Article 9 titled “Use of the Trademark” of the Industrial Property Code (IPC) reads as follows:
“If a registered trademark has not been genuinely used in Turkey for the goods or services for which it was registered for a period of five years from the date of registration without any justified reason, the trademark owner’s registration for such goods or services will be subject to cancellation.”
Accordingly, it is stipulated that if a registered trademark is not actively and genuinely used in Turkey for the goods or services it was registered for, or if there is a continuous uninterrupted period of five years without any justified reason for such use, the trademark may be subject to cancellation.
It is well-known that for a registered trademark to be considered as used, it must be genuinely used. Genuine use implies the intention and desire to use the mark for commercial purposes. The determination of whether the use is genuine or not must be assessed on a case-by-case basis.
Objective criteria such as the type, duration, scope, and geographical area of use should be taken into consideration for an evaluation. The purpose of use, as indicated in the rationale of the article, is to ensure that the use is in line with the trademark’s intended purpose, functions appropriately, and serves its role within commercial activities. The usage mentioned in the rationale can essentially be described as “trademark use.”
As stated in the Turkish Patent and Trademark Office’s (“TURKPATENT”) Guide for Proof of Use:
Genuine use of a trademark requires its actual usage. Therefore, symbolic usage solely aimed at maintaining rights derived from the trademark cannot be considered as genuine use.
Genuine use of a trademark should be carried out in a manner consistent with its essential function, which is to distinguish the origin of the goods or services covered by the registration.
Genuine use requires the usage of the goods or services covered by the trademark’s scope in the market (usage with commercial impact), which have already been launched or are being prepared to be launched with advertising campaigns to reach customers.
When determining whether the use of a trademark is genuine, all factors and circumstances contributing to the trademark’s commercial usage must be taken into account. (The real commercial value of the trademark, whether this use is seen as capable of creating a market or generating a market share for goods and services in the relevant trade sector, etc.) The specific conditions of the case under examination, among others, may require consideration of factors such as the nature of the goods and services, characteristics of the relevant market, frequency and extent of usage, etc.
It is not always necessary for the quantity of use to be high for it to be considered genuine use. This depends on the characteristics of the relevant market and the goods and services under examination. It should be noted that in cases of genuine use, making a profit is not an absolute requirement.
The legislator has introduced a significant exception regarding the genuine use quality of a registered trademark. One of these exceptions is that the use of different elements with the distinctive features of the trademark, without alteration, is also considered as trademark use.
In some cases, even the use of a trademark with the permission or authorization of the trademark owner can be considered as genuine use.
As stated in Article 26 titled “Grounds for Cancellation and Request for Cancellation” of the IPC, if the grounds for cancellation mentioned above exist, the Turkish Patent and Trademark Office (TURKPATENT) is the authority to which the request for cancellation of the relevant trademark will be submitted. The regulation of the administrative cancellation authority and the delegation of authority to the Turkish Patent and Trademark Office is aimed at aligning with the European Union’s trademark legislation.
However, the legislator has set the effective date of Article 26 to be 7 (seven) years after its publication date, which is January 10, 2024.
Therefore, until January 10, 2024, the authority to decide on the cancellation of the trademark will be exercised by the Intellectual and Industrial Property Rights Courts, and after the specified date, TURKPATENT will be the authority to decide.
Conclusion
In summary, it is necessary for the trademark owner to use their trademark in a genuine manner, specifically for the goods or services for which it has been registered in Turkey.
When considered within the scope of the IPC, trademarks that have not been genuinely used in Turkey for a continuous period of five (5) years or have been unused for five (5) years until January 10, 2024, will be subject to cancellation by the courts. After this date, the authority to decide on cancellation will be exercised by TURKPATENT.
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