WELL-KNOWN TRADEMARKS
PROTECTION FOR WELL-KNOWN MARKS IN TURKEY
Turkey has made great efforts in recent years to raise its game on well-known trademarks, say Korcan Dericioglu and Ahmet Munir Yasar.
In a globalised world, the boundaries of trade have been almost entirely removed—the quality and price of products are what matter, not their origin. Te most important element of pricing, on the other hand, is the value of the trademark used on products and services. Te most important factor taken into consideration during trademark appraisal is the level of recognition of the trademark. Companies allocate large budgets to increasing both national and international recognition of trademarks and to protecting their trademarks, which become well known due to this intensive effort, as well as legal efforts.
Having become a significant centre of attention for investors thanks to its growing economy and geopolitical position in Europe and Asia over recent years, Turkey is also undersigning important breakthroughs in intellectual property rights within the scope of the European Union acquis. In this article, we will try to briefly examine the well-known trademark concept in Turkey within the framework of international agreements, local legislation and Supreme Court decisions.
Even though the concept of a well-known trademark is mentioned in the Paris Convention,
TRIPS and Decree Law no. 556, no definitions of this term are found in these texts. However, according to the definition established by the Supreme Court, which is used in many decisions, a well-known trademark is defined as “a strong loyalty to a person or an enterprise, guarantee, quality, advertising power, an association that comes out as a reflex for those in the same environment connected to a wide distribution network, without discriminating between customer and other subjective interests and relations and without differentiating between cultural and age differences”.
Te argument that a trademark is well known can be assessed through court proceedings and well- known trademark applications filed before the Turkish Patent Institute (TPI).
Te criteria applied by the TPI as the basis for recognition are:
• The register and usage period of the trademark, i.e. the detailed history of the trademark
• The register and spread of the usage in geographical areas, i.e. the relevant domestic and foreign registries
• The currency of the goods and services in the market, market share and annual sales amount
32 World Intellectual Property Review May/June 2010
• The characteristics of promotions (especially in Turkey) of the trademark, i.e. the time period, geographical spread, scope, cost and quality of the promotion
• The activities that help advertise the trademark other than promotions, i.e. articles in newspapers or magazines, broadcasts on radio or TV and other media, etc.)
• The court decisions, if any, regarding the recognition of the trademark or the efforts of the trademark owner to protect the trademark
• The originality of the trademark and what makes it distinctive
• The results of any survey of consumer recognition of the trademark
• The characteristics of the trademark owner, i.e. the size of the company, number of employees, paid-up capital, endorsement, profit, etc.
• Whether the trademark identifies with the related goods and services, is associated with a good or service or points to a quality of the used goods and services
• Any documents or awards granted to the firm for the products to which the trademark applies
• The distribution channels and opportunities for export/import of the owner
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