TURKEY


Efficient customs actions at Turkish borders play a key role in the global combat against counterfeits in transit, and rights holders have a big part to play. Ayla Oktar and Salih Oktar report.


Border measures and customs seizures aimed at IP protection are the most effective, quickest and cost-efficient instruments for detaining and seizing counterfeit goods in international circulation, before they reach the end consumers. Tis is because:


 A temporary detaining procedure at customs does not require a prior judicial decision in principle.


 As an administrative public authority, the customs administration has a definite legal and actual power over the goods that are subject to customs procedures during the import/export transaction.


 Even if the rights holder does not make an application with the customs administration beforehand, there is a high probability that counterfeit goods can be determined and detained, because they pass through control and inspection for other compliance criteria (such as tax, public health requirements, etc) during customs transactions.


 All the information relevant


and documents to all the parties related to the


detained products, such as the producer, seller, shipper and purchaser companies, as well as the characteristics, price and quantity of


the goods are obtained and


kept by the customs administration. Tese count as reliable evidence for the rights holder in enforcement proceedings.


 Any shipment that is subject to a customs transaction enters the customs regimes of at least two different countries—the import and export countries. With transit shipments, the number of check points is even higher.





Rights holders do not have to carry out a difficult and expensive investigation and evidence collecting in advance.


 Te process of practical seizure of the


detained goods currently at customs is not troublesome or expensive for the rights holder.


 Tere is a simplified destruction process at the customs.


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Turkey, situated at the crossroads of Asia and the neighbouring EU countries, has a significant geopolitical position. Terefore Turkish customs have an undeniably vital role in the worldwide battle against infringement of IP rights.


Efficient customs actions at Turkish borders play a key role in the global combat against counterfeits in transit as well. Indeed, Turkish customs take very effective measures in this context. As a result, the number of infringed goods seized by customs has reached a remarkable level over the years.


Rights holders are highly recommended to use the administrative


an efficient IP protection involving customs measures in Turkey.


Baseline legal arrangement


Te legal basis for the detainment and seizure of goods deemed to be infringing IP rights at the Turkish border, is Article 57 of Customs Law no 4458, which was amended in 1999, and Articles 100 to 105 of the Customs Regulation which is enacted based on this law.


Scope


Goods which infringe registered trademarks, patents, industrial designs, geographic indications, integrated circuit topography rights, plant variety rights and copyright protected by the law, are stopped by customs upon the application of the rights holder or ex officio under specific conditions, and the goods are detained temporarily. In this context, it is most important for rights holders to ensure the territorial protection of their IP rights through registrations in Turkey.


The process Application of the rights holder


Customs measures function, in principle, based on a central application made to the customs administration by the rights holder. Upon this application, which requires renewal annually, the customs administration starts tracking potential infringements related to a protected right. When a product of this nature is declared at customs, its procedure is promptly suspended; the product is temporarily detained and the right holder is immediately informed.


and legal procedures for


Ex officio procedures in the absence of a central application to the customs administration


When a rights holder does not make any central application to the customs administration in advance, if it is obvious that the goods are counterfeit, the customs administration notifies the rights holder in compliance with Article 57/1.b of


the law and can detain such goods


ex officio and stop the customs procedure for three business days in order to permit the rights holder’s application. If the rights holder examines the products during


this time, detects the


infringement and makes the required application to the customs administration, then as of that moment, the procedure will be applied to the goods as if the rights holder had previously made a central application.


However, it has to be considered that this proceeding is optional for the customs authority and the customs may not apply this mechanism ex officio. In practice, this option will be performed in favour of well-known trademarks only, where the customs officers can identify the obvious infringement easily.


Further steps


Upon notification of the temporary detainment decision by the customs administration to the rights holder or its representative—this notification is made in writing in the implementation as a fax transmission in advance which is followed by a mail and the terms start as of the transmission of the fax message—the following procedures can be exercised by the rights holder:


1. Simplified destruction


Tis procedure has been added to the law by the amendment in 2009 (Customs Law Article 57/6; Customs Regulation Article 105). Accordingly, the rights holder may, within 10 business days following the customs notification (three days for perishable products), apply to the customs administration


together with the written


consent of the product owner or the authorised declarer for the simplified destruction of the goods without any need for a court order.


If no objections are made by the owner or declarer of the goods during the term indicated, then the simplified destruction procedure is applied by the customs administration. Te


Trademarks Brands and the Internet Volume 2, Issue 2 29


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