Someone Is Using My Trademark Without Permission: What Can I Do? Trademark Infringement and Legal Remedies in Turkey

1. What counts as trademark infringement?

Under Industrial Property Code No. 6769, trademark protection is obtained by registration, and the rights arising from registration belong exclusively to the owner (IPC art. 7(1)-(2) [1]). Infringement is the violation of these rights without the owner's consent. The owner may prevent three kinds of use (art. 7(2)):

• Identical sign, identical goods or services: use of a sign identical to the registered mark for the goods or services it covers.
• Likelihood of confusion: use of an identical or similar sign for identical or similar goods or services, where the public is likely to confuse the two or associate one with the other.
• Marks with a reputation: for marks that have reached a certain level of recognition in Turkey, use even for different goods or services that, without due cause, takes unfair advantage of or harms the mark's reputation or distinctive character.

The sign must be used in the course of trade. The Code lists the main examples (art. 7(3)):

• Affixing the sign to goods or packaging
• Offering or stocking such goods, or offering services under the sign
• Importing or exporting goods bearing the sign
• Using the sign on business papers and in advertising
• Using the sign online as a domain name, redirect code, keyword (for example in search engine ads) or similar, with commercial effect, where the user has no right or legitimate connection to it
• Using the sign as a trade name or business name
• Using the sign in unlawful comparative advertising

Article 29 also expressly treats as infringement: imitating the mark by using it or an indistinguishably similar sign; selling, distributing, importing, exporting or holding for commercial purposes goods bearing an imitated mark while knowing or being expected to know it is imitated; and extending licensed rights without permission or transferring them to third parties (IPC art. 29(1) [1]).

2. When might there be no infringement?

Not every similar use is infringement. Before acting, consider these limits:

• Honest use: the owner cannot prevent a natural person from stating their own name or address, descriptions of the kind, quality, purpose or geographical origin of goods, or use necessary to indicate the purpose of spare parts and accessories, as long as the use is honest and in line with ordinary commercial practice (art. 7(5)).
• Exhaustion: reselling genuine goods that you, or someone with your consent, put on the market is in principle outside your rights. You can, however, prevent such goods from being altered or impaired and then used commercially (IPC art. 152 [1]).
• Non-use defence: if your mark has been registered for at least five years when you sue, the defendant may ask you to prove serious use in Turkey, for the goods or services you rely on, during the five years before the lawsuit, or justified reasons for non-use. If you cannot, your claim may fail on that ground (IPC arts. 29(2) and 19(2) [1]).

3. What should you do first?

Check your registration

The scope of your right is defined by the list of goods and services in your registration. Use the TÜRKPATENT trademark search [4] to check whether your mark is registered or only applied for, which classes it covers and in whose name it is recorded. Protection lasts ten years from the filing date and is renewable for ten-year periods (IPC art. 23 [1]); relying on a registration that was not renewed can cause problems.

Secure the evidence

Infringing use, especially online, can be removed or changed quickly. So:

• Take screenshots of listings, social media posts and ads showing the date and URL.
• Buy the product with an invoice and keep the product, packaging and invoice.
• Photograph and document signs, catalogues, business cards and trade registry entries.
• If evidence may be lost, ask the court for preservation of evidence (an official pre-trial record of a fact, for example through expert examination or inspection) (Code of Civil Procedure (CCP) arts. 400-401 [5]). Notaries may also record facts (CCP art. 401(2)).

Before suing for damages (to secure evidence) or in a pending damages case (to quantify the loss), you may also ask the court to order the infringer to submit documents on its use of the right (IPC art. 150(3)).

Is a warning letter required?

No statute requires a warning letter before suing. In practice a notarised warning letter is often used to give the other side time to stop. For sellers, it may also help show that they knew or should have known the goods were imitations (art. 29(1)(c)); this is an assessment based on the statutory text. A warning also alerts the other side, so it is safer to secure evidence before sending one.

4. Civil route: the infringement lawsuit

What can you ask the court for?

The owner may request (IPC art. 149 [1]):

The right to publication lapses if not requested within three months after the judgment becomes final (art. 149(3)).

Where is the case filed?

• Subject-matter jurisdiction: the intellectual and industrial property civil court; where none exists, the civil court of first instance designated by the Council of Judges and Prosecutors (IPC art. 156(1) [1]).
• Venue: the court of the claimant's domicile, the place where the unlawful act occurred or the place where its effects are felt (art. 156(3)). If the claimant has no domicile in Turkey, the court where the registered attorney's office is located has venue; if the attorney's record has been deleted, the court where the Turkish Patent and Trademark Office is headquartered (art. 156(4)).

How are damages calculated?

The infringer must compensate the owner's loss, which covers actual loss and lost profit (IPC arts. 150-151 [1]). Lost profit is calculated, at the owner's choice, by one of three methods (art. 151(2)):

1. The income the owner would probably have earned without the infringer's competition
2. The infringer's net profit
3. The licence fee the infringer would have paid if it had used the mark lawfully under a licence

The court considers factors such as the economic importance of the mark, the number and duration of licences and the nature and extent of the infringement. If the first or second method is chosen and the court finds the mark was decisive for demand, it adds an equitable share (art. 151(3)-(4)). If poor-quality or improperly marketed infringing goods damage the mark's reputation, separate compensation may be claimed (art. 150(2)).

Is mediation required before suing?

Cases arising from intellectual property legislation are commercial cases regardless of whether the parties are merchants (Commercial Code art. 4(1)(d) [2]). In commercial cases for the payment of a sum of money, including damages, applying to a mediator before filing is a mandatory precondition (art. 5/A(1)). The mediator must conclude within six weeks of being appointed, extendable by up to two weeks where necessary (art. 5/A(2)).

On the wording of the statute, non-monetary requests such as declaration, cessation, removal and seizure are not covered by this requirement. If they are combined with a damages claim in one lawsuit, the mediation requirement must be met for the damages part.

Limitation

Private law claims arising from a trademark are subject to the limitation rules of the Turkish Code of Obligations (IPC art. 157 [1]). A damages claim becomes time-barred two years after you learn of the damage and the liable person, and in any case ten years after the act; if the act is a crime with a longer limitation period under criminal law, that period applies (Code of Obligations art. 72 [7]).

Preliminary injunction: stopping the use while the case is pending

A preliminary injunction is a temporary court order protecting the right until the case ends. An owner who proves that infringing use is taking place in Turkey, or that serious and effective preparations are being made for it, may request that the use be stopped and that infringing goods and the means used exclusively to make them be seized wherever they are, including customs areas and free zones (IPC art. 159 [1]). Key points (CCP arts. 390-397 [5]):

• An injunction may be requested before the main case is filed. The applicant must show that it is probably right on the merits; in urgent cases the court may decide without hearing the other side (art. 390).
• As a rule, security must be provided against the risk that the injunction proves unjustified (art. 392).
• Enforcement must be requested within one week of the order being pronounced to or served on you; otherwise the injunction lapses automatically (art. 393).
• If the order was granted before the main case, the case must be filed within two weeks of the enforcement request, or the injunction lapses automatically (art. 397). Where mediation is a mandatory precondition, this period does not run from the application to the mediation office until the final mediation report (Mediation Law No. 6325 art. 18/A(16) [8]).

5. Criminal route: complaint to the prosecutor

Anyone who infringes another's trademark by copying it or creating confusion, and produces goods, provides services, offers for sale, sells, imports, exports, buys for commercial purposes, holds, transports or stores such goods, faces one to three years' imprisonment and a judicial fine of up to 20,000 days (IPC art. 30(1) [1]). Removing the trademark protection notice from goods or packaging without authority, and assigning, licensing or pledging another's mark without authority, are separate offences (art. 30(2)-(3)).

Points to note:

• Registration in Turkey is required. A conviction requires the mark to be registered in Turkey (art. 30(5)).
• A complaint is required. Investigation and prosecution take place only upon the owner's complaint (art. 30(6)), which must be filed with the public prosecutor within six months of learning of the act and the offender (Criminal Code art. 73(1)-(2) [3]).
• Reconciliation: offences prosecuted only upon complaint fall within the reconciliation procedure. If there is sufficient suspicion to bring charges, the file is sent to the reconciliation office and the parties are offered reconciliation (Code of Criminal Procedure art. 253(1)(a), (2), (4) [9]).
• Withdrawing the complaint in principle ends the case, but it does not affect a defendant who does not accept the withdrawal. If, when withdrawing, you separately state that you also waive your personal rights, you can no longer sue in the civil courts (Criminal Code art. 73(4), 73(6), 73(7)).
• Seller disclosure: a person who offers or sells goods bearing an imitated mark is not punished if they disclose where they obtained the goods, enabling the producers to be identified and the goods to be seized (IPC art. 30(7)).
• The case is heard by the intellectual and industrial property criminal court or, where none exists, the designated criminal court of first instance (IPC art. 156(1)).

Where the conditions are met, the criminal and civil routes can be pursued together.

6. Online and at customs

• E-commerce marketplaces: a marketplace operator must remove a listing upon the right holder's complaint supported by information and documents showing an intellectual property infringement, and notify the seller and the right holder. If the seller objects with documents showing otherwise, the listing is restored; both sides may still go to court (Law No. 6563 art. 9(3) [10]). A platform complaint can be a quick first step but does not settle the dispute.
• ".tr" domain names: if the domain is identical or similar to your mark, the registrant has no legal right or connection to it, and it was registered or is used in bad faith, you may apply, as an alternative to the courts, to a dispute resolution provider authorised by the Information and Communication Technologies Authority. All three conditions must be met; the arbitrator may cancel the domain or transfer it to you (Internet Domain Names Regulation arts. 23, 25, 27 [11]).
• Customs: at the right holder's request, customs may suspend clearance of, or detain, goods infringing intellectual property rights. If the right holder does not submit a court injunction within three working days (perishable goods) or ten working days (other goods) of being notified, customs proceeds with the declared procedure; an extension of up to ten working days may be granted for a justified reason (Customs Law art. 57 [12]).

7. If the other side has registered a trademark too

A registration in the other side's name does not by itself protect it. A trademark owner cannot rely on its own registration as a defence in an infringement case brought by a holder with an earlier filing or priority date (IPC art. 155 [1]). To remove the later registration from the register, you may also ask the court to declare it invalid; invalidity takes effect from the filing date, as if protection had never arisen (arts. 25, 27(1)). In practice, infringement and invalidity claims are often brought together.

Watch the timing: if you knew or should have known that the later mark was being used and stayed silent for five consecutive years, you cannot rely on your mark to invalidate it unless the later registration was made in bad faith (art. 25(6)). If a similar application has been published but not yet registered, an opposition can be filed with the Turkish Patent and Trademark Office within two months of publication (art. 18(1)).

The other side may also act against your mark: since 10 January 2024, the Office itself can revoke marks that have not been seriously used within five years of registration or whose use has been suspended for five consecutive years (arts. 9(1), 26(1)(a), 192(1)(a)). Keep evidence of use (invoices, catalogues, advertising records) on file.

8. If your trademark is not registered

The infringement provisions of the IPC protect registered marks (art. 7(1)), and the criminal route requires registration in Turkey (art. 30(5)). An unregistered user is not entirely unprotected, however:

• Unfair competition: taking measures that cause confusion with another's goods, products, activities or business is unfair competition (Commercial Code art. 55(1)(a)(4) [2]). You may seek a declaration, cessation, removal and, if there is fault, damages (art. 56). These claims become time-barred one year after you learn of them and in any case three years after they arise; a longer criminal limitation period applies if the act is a crime subject to one (art. 60).
• Opposition and invalidity: if you acquired rights in an unregistered mark or another sign used in trade before someone else's filing date, you may oppose that application and, if it is registered, seek its invalidation (IPC arts. 6(3), 25(1) [1]).

9. Hypothetical example

This example is purely hypothetical. A Ltd. owns the mark "LİMAN" for clothing. It notices T-shirts with a similar logo sold on a marketplace under the name "LİMANN". The company takes screenshots, makes a test purchase with an invoice and files a marketplace complaint. The listings are removed; the seller objects and they reappear. The company then asks the intellectual and industrial property civil court for a preliminary injunction to stop sales and seize stock. As it will also claim damages, it applies to a mediator; no agreement is reached, and it files the main case. It also files a criminal complaint within the six-month period.

10. FAQ

My trademark is still at the application stage. Can I do anything now?

Trademark rights take effect against third parties from publication of the registration. You may sue for damages for acts after publication of your application, but the court cannot decide on those claims before the registration is published (IPC art. 7(4)).

Is a shop that sold counterfeit goods without knowing it also liable?

The Code expressly treats as infringement selling or holding for commercial purposes goods bearing an imitated mark while knowing or being expected to know they are imitations (IPC art. 29(1)(c)). What the seller knew is assessed case by case.

Can a consumer who bought a fake product be sued?

No. The owner cannot bring civil claims or a criminal complaint against people who hold or use infringing goods to the extent of their personal needs (IPC art. 153(1)).

My licensee is going beyond the licence. Is that infringement?

Extending licensed rights without permission or transferring them to third parties is infringement (IPC art. 29(1)(ç)). Unless the contract says otherwise, an exclusive licensee may also sue third-party infringers in its own name (IPC art. 158(1)).

Can I call the other side a "copycat" on social media?

Be careful. Disparaging others or their goods with false, misleading or needlessly hurtful statements is unfair competition (Commercial Code art. 55(1)(a)(1)), and the wording may also lead to an insult complaint. Pursuing the matter through formal channels is safer.

The other side sent me a letter asking whether its activity infringes my mark. What happens?

The Code provides for this. If you do not reply within one month of notification, or your reply is not accepted, the other side may sue you for a declaration that its activity does not infringe (IPC art. 154(1)). It is worth assessing your position before leaving such a letter unanswered.