TURKISH INDUSTRIAL PROPERTY CODE
PRELIMINARY PROVISIONS
Purpose, Scope, Definitions and Persons that will benefit from
Protection
Purpose and Scope
ARTICLE 1- (1) The purpose of this Code is to protect the rights
relating to trademark, geographical signs, design, patent, utility
model and traditional product names and thus to contribute to
technological, economic and social progress.
(2) This Code encompasses applications, registrations and
post-registration processes regarding trademarks, geographical
signs, design, patent, utility model and traditional product names
and legal and criminal sanctions concerning the violation of these
rights.
Definitions
ARTICLE 2- (1) In the enforcement of this Code;
a) Emblem: An emblem, which is established by the Office, indicating
that the
geographical indications and traditional product names have been
registered in line with the provisions of this Code; used on the
product or its packaging together with the name it has been
registered or applied by the right owners in an easily visible
manner in case it cannot be used on the product or its packaging due
to its characteristics; and mandatory to be used in case of
geographical signs,
b) Plant variety: The plant group within the lowest taxonomic rank
defined by the expression of various characteristics resulting from
one or more genotypes; distinguished from other genotypes of same
species by at least one typical characteristic, and considered as a
unit with regard to its suitability for being propagated unchanged,
c) Biological material: Any material that contains genetic
information and is self- reproducing or which can be reproduced in a
biological system,
ç) Bulletin: The relevant publication where subjects set out in
this Code are published regardless of publication medium,
d) Employee: Persons who are under the service of another party due
to a private law contract or a similar legal relationship and under
personal obligation with respect to this legal relationship to carry
out a certain work given by the employer,
e) Office: Turkish Patent and Trademark Office,
f) Board: The Board within the Department of Re-examination and
Evaluation,
g) Trademark attorney: The persons who represent the right owners
before the Office
in the fields relating to trademark, design, geographical signs and
traditional product names, ğ) Paris convention: The Paris
Convention for the Protection of Industrial Property dated 20/3/1883
and the amendments to this Convention as duly enforced by the
Republic of Turkey, which has been approved with Council of
Ministers with the Decree dated 8/8/1975
and numbered 7/10464,
h) Patent attorney: The persons who represent right owners before
the Office in the
fields relating to patent, utility model and design rights,
ı) Industrial property right: Trademark, geographical sign, design,
patent and utility
model,
i) Register: means the recording medium, which contains the
information relating to
industrial property rights and traditional product names,
j) Fee: The cost relating to services in the scope of this Code
determined by the Office
according to its relevant provisions inclusive of taxes and fees, if
any.
Persons to benefit from protection
ARTICLE 3- (1) The following shall benefit from protection of this
Code; a) Citizens of Republic of Turkey,
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b) Natural or legal entities domiciled or engaged in industrial or
commercial activities within the borders of Republic of Turkey,
c) Persons who have the right of application according to the Paris
Convention or Agreement Establishing the World Trade Organization,
ç) According to reciprocity principle, persons whose citizenships
are in states that provide Turkish citizens the protection of
industrial property rights.
BOOK ONE Trademarks
SECTION ONE Trademark Right and Scope
Signs that a trademark may consist of
Absolute grounds for refusal in trademark registration
ARTICLE 5- (1) The following signs set out below shall not be
registered as trademark:
a) Signs which may not be trademark according to Article 4;
b) Signs which are devoid of any distinctive character;
c) Signs which consist exclusively or includes as an essential
element of signs or
indications which serve in trade to designate the kind, type,
characteristics, quality, quantity, intended purpose, value,
geographical origin, or the time of production of goods or of
rendering of the services or other characteristics of goods or
services,
ç) Signs which are identical to or indistinguishably similar to a
trademark, which has been registered or which has been applied for
registration, relating to identical goods and services or to goods
and services of the identical type,
d) Signs which consist exclusively or includes as an essential
element of signs or indications used by everyone in the trade area
or which serves to distinguish members of a particular professional,
vocational or commercial group from others.
e) Signs which consist exclusively of the shape or another
characteristic which results from the nature of the goods themselves
or the shape or other characteristics which is mandatory to obtain a
technical result or gives substantial value to the goods;
f) Signs which would deceive the public, for instance, as to the
nature, quality or geographical origin of the goods or service;
g) Signs which shall be refused pursuant to Article 6ter of the
Paris Convention;
ğ) Signs other than those covered by Article 6ter of the Paris
Convention but which are of public interest, and which contain
historical, cultural values, and emblems, badges or escutcheons for
which the consent of the competent authority has not been given,
h) Signs that contain religious values or symbols;
ı) Signs which are contrary to public policy or to accepted
principles of morality;
i) Signs which consist of a registered geographical sign or which
contain a registered
geographical sign.
ARTICLE 4- (1) Trademarks may consist of any signs like words,
including personal names, figures, colors, letters, numbers, sounds
and the shape of goods or their packaging, provided that such signs
are capable of distinguishing the goods or services of one
undertaking from those of other undertakings and being represented
on the register in a manner to determine the clear and precise
subject matter of the protection afforded to its proprietor.
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(2) If a trademark has been used before the application, and through
this use, has acquired distinctive character in respect of the goods
and services subject to the application, the registration of this
trademark may not be refused in accordance with subparagraphs (b),
(c) and (d) of the first paragraph.
(3) A trademark application may not be refused according to
subparagraph (ç) of the first paragraph if a notarial document
indicating the clear consent of the prior trademark proprietor for
the registration of the application is submitted to the Office.
Procedure and rules regarding the letter of consent shall be
determined by regulation.
Relative grounds for refusal in trademark registration
ARTICLE 6 - (1) An application for trademark registration shall be
refused upon opposition if there exists a likelihood of confusion on
the part of the public, including the likelihood of association with
the earlier trademark, due to identity with, or similarity to, the
earlier trademark and the identity or similarity of the goods or
services covered.
(2) A trademark application for the registration of an identical or
indistinguishably similar trademark filed by a commercial agent or
representative in his own name without the trademark proprietor’s
consent and without any justifiable ground shall be refused upon the
trademark proprietor’s opposition.
(3) If a right to a non-registered trademark or to another sign used
in the course of trade was acquired prior to the date of application
or the date of the priority claimed for the application for
registration of a trademark, the trademark application shall be
refused upon opposition of the proprietor of that prior sign.
(4) Trademark applications which are identical or similar to the
well-known marks within the context of Article 6 bis of the Paris
Convention, shall be refused upon opposition in respect of the
identical and similar goods or services.
(5) A trademark application which is identical with, or similar to,
an earlier registered trademark or application irrespective of
whether the goods or services for which it is applied or registered
are identical with, similar to or not similar to those for which the
latter trademark is applied for, and the use of the latter trademark
without due cause would take unfair advantage of, or be detrimental
to the distinctive character or the repute of the earlier trade mark
due to the reputation the earlier trademark has in Turkey; shall be
refused upon opposition of the proprietor of that earlier trademark.
(6) An application for registration of a trademark shall be refused
upon the opposition of the right holder if it consists of a person’s
name, trade name, photography, copyright or any other intellectual
property right of another.
(7) An application for registration of a trademark identical to or
similar to a collective mark or a guarantee mark with identical or
similar goods or services, that is filed within three years
following the expiration of the protection of the collective mark or
guarantee mark due to non-renewal shall be refused upon opposition
of the previous right holder.
(8) An application for registration of a trademark identical to or
similar to a registered trademark with identical or similar goods or
services, that is filed within two years following the expiration of
the protection of the registered trademark due to non-renewal shall
be refused upon opposition of previous trademark proprietor provided
that the trademark has been used during this period.
(9) Trademark applications filed in bad faith shall be refused upon
opposition.
Scope of rights conferred by a trademark and its exceptions
ARTICLE 7- (1) Trademark protection provided by this Code shall be
acquired by registration.
(2) Rights arising from trademark registration shall be granted
exclusively to the trademark proprietor. The trademark proprietor
shall be entitled to claim for prevention, in case of execution
without consent, of the acts set out below:
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a) Use of any sign identical with the trademark at goods or services
that are in the scope of the registration.
b) Use of any sign identical with or similar to a registered
trademark and covering identical or similar goods or services with
the registered trademark, and is therefore liable to create a
likelihood of confusion on the part of the public; including the
likelihood of association between the sign and the trademark.
c) Use of any sign identical with, or similar to the registered
trademark, irrespective of being for identical, similar or different
goods or services, where the use of that sign without due cause
takes unfair advantage of, or is detrimental to, the distinctive
character or the repute of the trade mark due to the reputation it
has in Turkey.
(3) The cases set out below may be prohibited, if the sign is used
in trade area, in accordance with paragraph two:
a) Affixing the sign to the goods or to the packaging thereof;
b) Putting the goods on the market, offering them as deliverable, or
stocking them for these purposes under the sign, or offering or
supplying services thereunder;
c) Importing or exporting the goods under the sign;
ç) Using the sign on business papers and advertisements of the
undertaking.
d) Using identical or similar sign on internet media as domain name,
router code,
keyword or in similar manner with a commercial impression; provided
that the person using the sign has no right or legal affiliation for
the use of that sign.
e) Using the sign as a trade or company name;
f) Using the sign in comparative advertising in a manner that is
against the law.
(4) The rights conferred by the trademark to its proprietor shall
take effect against
third parties as of the publication date of trademark registration.
However, the trademark applicant shall be entitled to institute
legal proceeding for compensation in respect of acts that occured
after the date of publication of the trade mark application in the
Bulletin, where those acts would, after publication of the
registration of the trade mark, be prohibited by virtue of that
publication. The court may not decide upon the validity of claims
raised before the registration is been published.
(5) The trademark proprietor may not prevent the honest use of his
trademark by a third party, in the course of trade in the forms set
out below:
a) Natural persons indicating their own name or address;
b) Making explanations concerning the kind, quality, quantity,
intended purpose, value, geographical origin, the time of production
of goods or of rendering of the service, or other characteristics of
the goods or services;
c) Situations where it is necessary to indicate the intended purpose
of a product or service, in particular as accessories or spare parts
or equivalent products.
Use of the trademark in reference works
ARTICLE 8- (1) In case a registered trademark is published in a
dictionary, encyclopedia or similar reference work, in printed or
electronic form, without an indication that it is a registered trade
mark, and giving the impression that it constitutes the generic name
of the goods or services for which the trademark is registered; the
publisher of the work, at the request of the proprietor of the
trademark, immediately in case of electronic publication or in the
first edition of publication following the request for printed
publications, shall correct the mistake by indicating that it is a
registered trademark or remove the trademark from the reference
work.
Use of trademark
ARTICLE 9- (1) If, within a period of five years following the date
of registration, the trademark has not been put to genuine use in
Turkey by the trademark proprietor in connection with the goods or
services in respect of which it is registered, or if such use has
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been suspended during an uninterrupted period of five years, the
trademark shall be revoked, unless there are proper reasons for
non-use.
(2) The cases set out below shall also be deemed as use of trademark
within the meaning of the first paragraph:
a) Use of the trademark with different elements which do not alter
the distinctive character of the mark;
b) Use of the trade mark on goods or on the packaging solely for
export purposes.
(3) Use of the trademark with the consent of the trademark
proprietor shall be deemed to constitute use by the trademark
proprietor.
Requests relating to trademarks registered in the name of commercial
agent or representative
ARTICLE 10- (1) If an identical or indistinguishably similar
trademark is registered in the name of the agent or representative
without the consent of the trademark proprietor, unless the
commercial agent or representative has a justifiable reason, the
trademark proprietor may request from the court the prohibition of
the use of his trademark and may also request the transfer of the
said registration to himself.
SECTION TWO Application, Opposition and Appeals
PART ONE
Application, Priority Right and Examination
Application conditions, classification and division
ARTICLE 11- (1) Trademark application shall consist of;
a) Application form containing information on the identity of
applicant,
b) Representation of trademark,
c) List of goods or services for which application is filed,
ç) Information showing that the application fee is paid,
d) If the application has been filed for collective or guarantee
trademarks, technical
specifications according to Article 32,
e) If priority right is claimed, information showing that the fee of
priority right claim is
paid,
f) If letters other than the Latin alphabet are used in the
reproduction of trademark,
their transliteration in the Latin alphabet.
(2) Only one trademark registration can be claimed per application.
(3) Goods or services for which application is filed shall be
classified in accordance
with Nice Agreement Concerning the International Classification of
Goods and Services for the Purposes of the Registration of Marks,
which was ratified pursuant to the decision of the Council of
Ministers dated 12/7/1995 numbered 95/7094. The Office may perform
necessary corrections on classes and class numbers belonging to
goods and services in the application.
(4) Goods or services shall not be presumed as being similar on the
ground that they are in the same class and goods or services shall
not be regarded as being dissimilar on the ground that they are in
different classes.
(5) Trademark application may be divided, upon the request of the
applicant, until being registered, into two or more applications in
terms of goods or services covered by the application.
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(6) Spelling mistakes and obvious mistakes, which do not cover any
changes in the content of trademark application, reproduction of
trademark or list of goods and services, shall be corrected upon the
request of the applicant.
(7) Procedure and rules regarding the application, classification
and division shall be determined by regulation.
Priority right and its effect
ARTICLE 12- (1) Natural or legal entities or their successors in
title who are
nationals of one of the states that are party to Paris Convention or
Agreement Establishing World Trade Organization or those who are
domiciled or has an active commercial enterprise therein although
they are not nationals thereof, shall enjoy priority right for
applying in Turkey within six months following the date of
application they duly filed, for a trademark registration of the
identical trademark and identical goods or services to competent
authorities, in one of those states within the scope of the
provisions of Paris Convention. Priority rights which are not used
within this period shall be forfeited. It is mandatory to get a
document of priority right from the competent authority of the state
to which the first application was filed in order to enjoy the
priority right.
(2) The natural or legal entities or their successors in title set
out in the first paragraph shall enjoy the priority right within the
framework of the rules set out in the first paragraph based on the
trademark application they duly filed in a state which is not a
party to Paris Convention and the Agreement Establishing World Trade
Organization.
(3) Natural or legal entities set out in the Article 3, who display
under the trademark the goods or services for which the trademark is
applied for, at national or international exhibitions in Turkey or
official or officially recognized exhibitions in the countries which
are parties to Paris Convention or Agreement Establishing World
Trade Organization and who presents the certified reproduction of
the trademark, shall enjoy the priority right in filing application
for registration of the identical trademark in Turkey within six
months following the display in the exhibition.
(4) If the goods or services for which trademark specified in the
application will be used have been displayed along with the
trademark in a visible way in the exhibition before the official
opening date, the period of priority right shall commence from the
date when the goods are put on the exhibition or the services are
displayed.
(5) If more than one application has been filed in terms of goods or
services displayed in any exhibition, the first person who displays
these goods or services shall benefit from the priority right and if
goods or services are displayed at the same time, the person who
filed the first application shall benefit from the priority right.
(6) If an application is filed on the basis of priority right,
applications filed by third parties after the priority date and
which cover identical or indistinguishably similar trademarks with
identical or similar goods or services shall be refused.
The request for priority effect and its effect
ARTICLE 13- (1) The applicant shall state the priority right he
wishes to make use of, together with the application by depositing
the fee for the request. In case the applicant does not submit the
priority right certificate within three months following the date of
application, the request for the priority right shall be deemed not
to have been made.
(2) The effect and the results of the priority right shall be
conferred as of the dates set out in Article 12.
(3) In case more than one priority right is requested for the
trademark application, the priority right commences from the date of
first valid priority right.
(4) Procedure and rules regarding request for priority right shall
be determined by regulation.
International trademark applications filed under the Madrid Protocol
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ARTICLE 14- (1) An international application filed in the scope of
Protocol Relating to the Madrid Agreement Concerning the
International Registration of Marks, which was ratified pursuant to
the decision of the Council of Ministers dated 5/8/1997 numbered
97/9731, shall have the same results with an application filed
directly to the Office. This application shall be deemed to have
been filed in the first hour and minute of date of international
application. In case there is more than one international
application with the same date, the application with the smaller
international registration number shall be deemed to have been filed
first.
(2) An international application may not be refused based on a
trademark application or registered trademark filed after the
application or priority date of the international application but
submitted to the Office at earlier date. The trademark application
with later date shall be re-examined according to the provisions of
the first paragraph of Article 16 by taking into account the earlier
dated international trademark application.
(3) Fees received for proceedings carried out by the Office in the
scope of Madrid Protocol shall be determined by communiqué.
Procedural examination, remedy of deficiencies and application date
ARTICLE 15- (1) The Office shall formally examine the conformity of
the application with the Articles 3 and 11. In case it is decided
that there are no deficiencies, the application shall finalize in
date, hour and minute of its date of reception. In case there is
deficiency in the application, the applicant shall be given a period
of two months to remedy the deficiency.
(2) If there is deficieny related to subparagraphs (a), (b), (c) and
(ç) of first paragraph of Article 11, the application shall
finalize in date, hour and minute of the remedy of the deficiency.
The deficiencies related to subparagraphs (d), (e) and (f) of first
paragraph of Article 11 shall not affect the finalization of the
application date.
(3) Application whose deficiencies are not remedied within the
prescribed period shall be cancelled. However, in case the
application has been filed for goods or services covering more than
one class and the nonpayment of the fee regarding classes is not
remedied in the prescribed period, the application shall be examined
for class or classes covered by the paid fee. Failure to remedy
deficiencies related to the priority right in accordance with
subparagraph (e) of first paragraph of Article 11 shall cause the
loss of the priority right.
(4) The application of natural or legal entities, which is not in
the scope of Article 3, shall be refused.
Examination of application regarding absolute grounds for refusal
and publication
ARTICLE 16- (1) If the Office decides that the application does not
have any formal deficiencies, it shall examine the application in
accordance with Article 5. As a result of the examination, if it is
concluded that the application may not be registered for some or all
of the goods or services in the scope of the application, the
application shall be refused for those goods or services.
(2) An application, which has fulfilled the conditions of
application and has not been refused according to the Article 15 and
first paragraph of this Article, shall be published in the Bulletin.
(3) In case the application is decided to be refused in accordance
with the Article 15 and first paragraph of this Article after the
publication, this decision shall also be published in the Bulletin.
PART TWO
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Observations of Third Parties, Oppositions and Appeals, and
Examination of Oppositions and Appeals
Observations of third parties
ARTICLE 17- (1) After the publication of the trademark application,
everyone may submit to the Office their observations with grounds
and in writing that the trademark application should not be
registered within the scope of the subparagraphs of the Article 5,
with the exception of subparagraph (ç), until the registration of
the trademark. However, these persons may not be party to the
proceedings before the Office.
(2) The Office shall evaluate these observations and if it comes to
the conclusion that these observations are correct, it shall refuse
the trademark application partially or as whole.
Opposition against publication
ARTICLE 18- (1) Oppositions concerning a trademark application that
was published in the Bulletin should not be registered in accordance
with Articles 5 or 6, shall be filed by relevant persons within two
months following the publication of the trademark application.
(2) The opposition shall be made to the Office in writing and with
grounds. If the grounds for opposition are not submitted to the
Office within the period set out in the first paragraph, the
opposition shall be deemed not to have been made. In order for the
examination of the opposition, it is mandatory that the opposition
fee is paid within the period of the opposition and that the
information regarding the payment of the fee is submitted to the
Office within the same period.
Examination of the opposition against publication
ARTICLE 19- (1) The Office shall request the applicant to submit his
observations concerning the oppositions within the prescribed
period. The Office, if it considers necessary, may request the
parties to submit additional information and documentation. If
observations or requested additional information and documents are
not submitted to the Office within the prescribed period, the
opposition shall be examined in accordance with the existing
information and documents.
(2) Regarding oppositions filed in the scope of the first paragraph
of Article 6, provided that the trademark, which is the ground for
opposition, has been registered for at least five years at the date
of application or date of priority of the application for which the
opposition is filed, upon the request of the applicant, it shall be
requested from the opponent to submit evidence proving that he had
genuinely used his trademark on the goods and services relating to
the opposition during the five-years period before the date of
application or the date of priority of the latter application or
whether he has a proper reason for not using his trademark during
that period. In case the opponent fails to prove the aforesaid,
opposition shall be refused. If it is proven that the trademark,
which is the ground for opposition, has been used only for some of
the goods or services which are covered by registration, then the
opposition shall be examined taking into account the goods or
services whose use is proven.
(3) As a result of the examination, if it is concluded that the
trademark should not be registered for some or all of the goods or
services for which application is filed, the application shall be
refused concerning these goods or services. Otherwise, the refusal
of the opposition shall be decided.
(4) The Office, if it considers necessary, may encourage the parties
for reconciliation. For matters related to the friendly settlement,
the provisions of Turkish Mediation Act on Civil Disputes dated
7/6/2012 numbered 6325 shall be applied.
(5) Procedure and rules relating to the opposition against
publication shall be determined by regulation.
Appeals
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ARTICLE 20- (1) Parties adversely affected from decisions taken by
the Office within the context of this Book may appeal against the
decisions before the Office.
(2) Appeal shall be made in written and with grounds to the Office
within two months from the notification date of the decision. In
case the grounds of the appeal are not submitted within this time,
the appeal shall be deemed not to have been made. In order for the
examination of the appeal, it is mandatory that the appeal fee is
paid within the period of the appeal and that the information
regarding the payment of the fee is submitted to the Office within
the same period. After the expiration of the appeal period, the
grounds for appeal may not be altered and new grounds may not be
added.
Examination of appeals
ARTICLE 21- (1) Appeals, which do not have any formal deficiency,
shall be examined by the Board.
(2) The Board shall request from the parties to submit their
observations concerning the appeals within the prescribed period. If
the Office considers necessary, it may request the parties to submit
additional information and documentation. If requested additional
information and documents or observations are not be submitted to
the Office within the prescribed period, the appeal shall be
examined in accordance with the existing information and documents.
(3) The Board, if it considers necessary, may encourage the parties
for reconciliation in accordance with the fourth paragraph of the
Article 19 for appeals against decisions based on the third
paragraph of the Article 19.
(4) The Board shall give the final decision of the Office as a
result of the examination and evaluation it shall conduct.
SECTION THREE Registration, Term of Protection and Renewal
Registration
ARTICLE 22- (1) An application; which have been filed without
deficiency or whose deficiencies have been remedied; have been
examined and published pursuant to Article 16, against which there
has been no opposition or such opposition has been ultimately
rejected, and all stages have been completed upon submission to the
Office of missing documents within the prescribed period, including
information demonstrating that registration fee is paid, shall be
recorded in the registry by registration and shall be published in
the Bulletin. In case of failure to deposit the fee concerning
registration of the trademark and submitting to the Office the
information concerning the payment within the prescribed period, the
application shall be abolished.
(2) A trademark, which has been registered without completion of the
stages set out in the first paragraph, shall not be deemed as a
registered trademark; its application procedures shall be continued
from the incomplete stage and this situation shall be published in
the Bulletin. In case it is decided to re-register these
applications, the registration fee shall not be claimed again.
However, after two years from the registration date, the
registration of trademark shall not be affected from incomplete
stage.
(3) Registry shall be open to public. In case of demand and on the
condition that the fee is deposited, a copy of registration shall be
given.
(4) Procedure and rules regarding recording to the registry,
publication and registration shall be determined by regulation.
The term of protection and renewal
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ARTICLE 23- (1) The term of protection for registered trademark is
ten years from the date of application. This term shall be renewed
for periods of ten years.
(2) Request for renewal needs to be made by the trademark proprietor
within six months before the expiry of the protection date and the
information regarding the payment of the fee needs to be submitted
to the Office within the same period. In case no request is made or
the information regarding payment of the renewal fee is not
submitted to the Office within this period, renewal request may be
made within six months after the expiry of the protection date,
provided that an additional fee is paid.
(3) The trademark may be renewed for a part of the goods or services
within the scope of its registration.
(4) The request of any of the companies included in the group shall
be sufficient for the renewal of a collective trademark.
(5) Renewal shall take effect from the day following the date on
which the previous registration expires. The renewal shall be
recorded in the registry and published in the Bulletin.
SECTION FOUR License
License
ARTICLE 24- (1) The trademark right may be subject to a license for
a part or all of
the goods or services for which it is registered.
(2) License may be granted as exclusive license or non-exclusive
license. Unless
otherwise agreed in the contract, the license shall not be
exclusive. In the non-exclusive license contracts, licensor may use
the trademark himself or may grant licenses to third parties. In the
exclusive license contracts, licensor may not grant license to
another person and unless the right has been apparently reserved,
may not use the trademark himself.
(3) Unless otherwise agreed in the contract, licensors may not
transfer their rights arising from the license to third parties or
grant sub-licenses.
(4) The licensor shall take measures to guarantee the quality of
goods to be produced or services to be offered by the licensee. The
licensee is obliged to comply with the terms of the license
contract. Otherwise, the trademark proprietor may claim his rights
arising from registered trademark against the licensee.
SECTION FIVE Termination of Right
PART ONE Invalidation and Revocation
Grounds for invalidation and request for invalidation
ARTICLE 25- (1) If one of the conditions mentioned under Articles 5
or 6 exist, invalidation of trademark shall be decided by the court.
(2) Persons who have interests, public prosecutors or relevant
public institutions and organizations may request the court to
decide on the invalidity of trademark.
(3) Trademark invalidation proceedings shall be claimed against
persons who are registered in the register as trademark proprietor
as of the date of filing of invalidation proceeding or their
successors in title. The Office shall not be designated as a party
to trademark invalidation proceedings.
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(4) If a trademark has been registered contrary to subparagraphs
(b), (c) and (d) of first paragraph of Article 5 but it has acquired
distinctive character as a result of use with regards to the
registered goods or services before the invalidation request against
the trademark, such trademark shall not be invalidated.
(5) If invalidation is requested partially for some goods or
services for which the trademark is registered, decision regarding
the partial invalidation shall be given for only such goods or
services. An invalidation decision which has the result of altering
the representation of the trademark may not be given.
(6) Where a trademark proprietor has acquiesced in the use of a
later trademark for a period of five successive years while being
aware or should have been aware of this situation, trademark
proprietor may not allege his trademark as an invalidation ground
unless the registration of the later trademark is in bad faith.
(7) In the invalidation proceedings filed pursuant to first
paragraph of Article 6, the provision of second paragraph of Article
19 may be asserted as a defense. In this case, date of proceeding
shall be taken as the basis in determining the five-year period
regarding use. If the plaintiff’s trademark has been registered for
at least five years at the application date or at the date of
priority right of trademark for which invalidation is requested, the
plaintiff shall also prove the fulfillment of the conditions
specified in the second paragraph of Article 19 at the aforesaid
date of application or date of priority right.
Grounds for revocation and revocation request
ARTICLE 26- (1) Upon request, the revocation of the trademark shall
be decided by the Office in the following situations:
a) Existance of conditions set out in the first paragraph of the
Article 9.
b) Trademark becoming generic for the registered goods or services
due to trademark proprietor’s actions or as a consequence of
necessary measures not taken by the trademark proprietor.
(c) Trademark misleading the public concerning the nature, quality
or geographic origin of the goods or services for which it is
registered, as a result of the use by the trademark proprietor
himself or with the trademark prorietor’s consent.
(ç) Use of trademark contrary to Article 32.
(2) Interested persons may request revocation of trademark from the
Office.
(3) Revocation requests concerning a trademark shall be asserted
against persons
registered as trademark proprietors at the date of request or their
successors in title.
(4) In case trademark is put in a genuine use with regard to the
registered goods or services between the expiration period of five
years and the date when revocation request is submitted to the
Office, the revocation requests related to subparagraph (a) of first
paragraph shall be refused. If the use has been carried out by
considering that revocation request would be made, the use carried
out within three months prior to the submission of the request to
the
Office shall not be taken into consideration.
(5) If revocation relates to some goods or services for which the
trademark is
registered, then the decision for partial revocation shall be given
for only those goods or services. A revocation decision which has
the result of altering the representation of the trademark may not
be given.
(6) If right owner changes during examination of the revocation, the
proceedings shall continue with respect to the person who appears as
the right owner in the registry.
(7) Revocation requests shall be notified to propreitor of the
trademark for which the revocation is requested. The trademark
proprietor shall submit his evidences and responses to the Office
within one month. In case an extension is requested within this one
month period, the Office shall grant an additional one month. The
Office, if it considers necessary, may demand additional information
and documentation. The Office shall give a decision with
11
respect to the file within the framework of claims and defenses as
well as the presented evidences.
The effect of invalidation and revocation
ARTICLE 27- (1) If a decision related to invalidation of trademark
is given in accordance with Article 25, such a decision will be
effective from the application date of trademark and the trademark
shall be deemed not to have had the protection provided by this
Code.
(2) If a decision for revocation of trademark is given in accordance
with Article 26, such a decision shall be effective on the date when
the request for revocation is submitted to the Office. However, in
case the conditions for revocation have occured at an earlier date,
it may be decided, upon request, that the revocation decision be
effective as of that date.
(3) Without prejudice to compensation claims of parties damaged due
to negligence or bad faith of the trademark proprietor, retroactive
effect of decision on invalidity or revocation regulated in the
second sentence of second paragraph shall not affect the following
cases:
(a) Final and enforced judgments of courts in proceedings filed due
to infringement of the rights provided by trademark, prior to the
decision.
(b) Contracts established and performed prior to the decision.
(4) The fee paid pursuant to contracts in the scope of subparagraph
(b) of third
paragraph, may be requested to be returned partially or fully on the
basis of equity.
(5) The final decisions regarding the invalidity or revocation of
the trademark shall be
effective for everyone.
(6) After finalization of the invalidation decision, the court shall
ex officio send this
judgment to the Office.
(7) After finalization of invalidation or revocation decision, the
trademark shall be
removed from the register and this situation shall be published in
the Bulletin.
PART TWO
Other Termination Conditions and Its Results
Termination and its results
ARTICLE 28- (1) Trademark right shall terminate in the following
conditions:
a) Expiry of term of protection and not renewing the trademark in
prescribed time.
b) Surrender by the trademark proprietor of his trademark right.
(2) The termination of a trademark right shall take effect as of the
time of occurance of
the reason for termination.
(3) Trademark proprietor may surrender all or a part of the goods or
services in the
scope of the registration. The surrender shall be declared in
writing to the Office and termination of trademark right due to
surrender shall be published in the Bulletin. The surrender shall
take effect at the date of entry in the register.
(4) Trademark proprietor may not surrender his trademark right
without the consent of the licensees and right owners recorded in
the register. If right ownership on trademark has been claimed by a
third party and an interlocutory injunction taken in this matter has
been entered in the register, rights arising from a trademark may
not be surrendered without the consent of the that party.
(5) Trademark application may be withdrawn by the applicant before
the registration of the trademark. The provisions relating to the
surrendering of the trademark right shall also be applied for
withdrawal of trademark application.
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SECTION SIX Trademark Right Infringement
Acts considered as infringement of trademark right
ARTICLE 29- (1) The acts below shall be considered as infringement
of trademark right;
a) To use the trademark as set out in Article 7 without the consent
of the trademark proprietor;
b) To counterfeit the trademark by using the trademark or a
confusingly similar trademark without the consent of the trademark
proprietor;
c) While being aware or should be aware that the trademark is
counterfeited by use of the trademark or a confusingly similar
trademark, to sell, distribute, put on the market in a different
form, possess for commercial purpose, import, export the products
carrying infringed trademark or to offer to make a contract related
to this product,
ç) To broaden or to transfer to third parties, without consent, the
rights given by the trademark proprietor through license.
(2) Provisions of second paragraph of Article 19 may be used as a
defense in infringement proceedings. In this situation, the date of
the proceeding shall be taken into account for determining the
five-year period related to the use.
Criminal provisions related to trademark infringement
ARTICLE 30- (1) A person who produces or provides services, puts on
the market or sales, imports or exports, buys for commercial
purposes, possesses, transports or stores, while infringing a
trademark right through quotation or likelihood of confusion, shall
be sentenced from one year to three years of imprisonment and
punished with judicial fine up to twenty thousand days.
(2) A person who removes the sign indicating the trademark
protection from a product or packaging without authorization shall
be sentenced from one year to three years of imprisonment or
punished with judicial fine up to five thousand days.
(3) A person who makes, without authorization, a disposition of a
trademark right, which is owned by someone else, by transferring,
licensing or pledging shall be sentenced from two years to four
years of imprisonment and shall be punished with judicial fine up to
five thousand days.
(4) If the crimes indicated in the provisions of this Article are
committed by acts of a legal entity, additionally specific security
measures shall be taken.
(5) To give a sentence due to the crimes indicated in this Article,
it is mandatory that the trademark is registered in Turkey.
(7) If a person, selling or putting on the market a counterfeit
product, submits information about where he acquired those goods
and, thus, contributes to the detection of the producers and the
seizure of the products, he shall not be sentenced.
SECTION SEVEN Collective and Guarantee Mark
Guarantee mark and collective mark
ARTICLE 31- (1) A guarantee mark is a sign that serves for
guaranteeing the common characteristics of the undertakings,
production methods, geographical origin and quality of those
undertakings, under the control of the proprietor of the mark.
(6) Investigation and prosecution of the crimes indicated in this
Article are subject to complaint.
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(2) The use of a guarantee mark for goods or services of the
trademark proprietor or undertakings economically linked to
proprietor is prohibited.
(3) Collective mark is a sign used by a group of undertakings of
producers or traders or providers of services.
(4) Collective mark serves the purpose of distinguishing the goods
and services of the undertakings from those of other undertakings.
Technical specificatrions for the guarantee mark or collective mark
ARTICLE 32- (1) It is mandatory to submit a technical specification
indicating the procedure and rules for use of the mark when filing
an application for registration of a guarantee or a collective mark.
(2) The technical specification of the guarantee mark shall indicate
the common characteristics of the goods and services under
guarantee, methods of using the mark, how and how often the
inspections shall made after the right concerning the use of the
mark is granted and the sanctions to be imposed in case of use
contrary to the technical specification.
(3) The technical specification of the collective mark shall specify
the undertakings authorized to use the collective mark and the
membership conditions for the community composed of these
undertakings, terms of using the mark and, if available, the
sanctions. All undertakings in the group shall act collectively for
the registration of collective mark and the surrender from the
collective mark right.
(4) Each undertaking in the group shall be authorized to file legal
proceeding by itself.
(5) Amendments to be made in the technical specification shall not
be applicable until they are approved by the Office.
(6) In case the technical specification does not contain the
requirements set out in second and third paragraphs or it is
contrary to public order or accepted principles of morality, the
owner of the mark shall be notified by the Office to make required
amendments in technical specification. If the owner of the mark does
not make the required amendments and correct the technical
regulation within six months following the notification, the request
for the registration of the guarantee mark or the collective mark
shall be rejected
(7) In case of application of relevant persons, public prosecutors
or the relevant public institutions on the grounds that the owner
does not take necessary measures in order to prevent the continuous
use of the collective mark or the guarantee mark contrary to the
technical specification, the mark shall be revocated unless the said
contrary use is corrected within the prescribed period.
(8) Procedure and rules regarding the technical specification are
specified with a regulation.
BOOK TWO
Geographical Indication and Traditional Speciality Guaranteed
PART ONE
Geographical Indication and Traditional Speciality Guaranteed Right
Products within the scope of protection
ARTICLE 33- (1) Food, agricultural, mining, handicraft and
industrial products resulting from unification of natural and human
factors, which comply with the provisions in this Book, shall be
entitled to geographical indication or traditional speciality
guaranteed protection provided that they are registered.
14
Appellation of origin, designation of origin, and traditional
speciality guaranteed
ARTICLE 34- (1) Geographical indication is the sign indicating a
product that has become associated with a locality, area, region or
country where it originates due to an apparent characteristic, its
reputation or other features. Geographical indications shall be
registered as appellation of origin or designation of origin
according to the features set out below:
a) The names that identify products, which originate from a
locality, region or in exceptional cases a country with designated
geographical boundries; that derive their all or principal
characteristics from the natural or human factors exclusively
attributed to this geographical area where their production,
processing and all other operations take place, are appellation of
origin.
b) The names identifying products, which originate from a locality,
region or in exceptional cases a country with designated
geographical boundries; that is associated with this region due to
an apparent characteristic, its reputation or other features; where
at least one of the steps from production, processing or other
operations take place within the boundries of the designated
geographical area, are designation of origin.
(2) Names that are traditionally used to designate products which
fulfil the conditions stated in the first paragraph of this Article,
which are used in daily language and do not contain a geographical
name may also be considered as appellation of origin or designation
of origin even if those names do not include a geographical name.
(3) Names that are not considered as appellation of origin or
designation of origin but are proven to have been traditionally used
in the relevant market for at least thirty years to desribe the
product and fulfil at least one of the following conditions, shall
be identified as traditional speciality guaranteed:
a) Originating from traditional method of production or processing
or traditional composition.
b) Produced with traditional raw material or ingredients.
Names that shall not be registered
ARTICLE 35- (1) The following shall not be registered as
geographical indication:
a) Names that are not within the scope of Article 34.
b) Names that have become generic names of products.
c) Plant species and varieties or animal breeds or other similar
names, which may
mislead the public as to the true origin of the product.
ç) Names contrary to public order or general principles of
morality.
d) Names that are not protected, whose duration of protection have
expired or not used
in their own country although having been applied by persons
fulfilling the conditions set out in Article 3.
e) Names that are wholly or partially homonymic with a name that is
registered or has already been filed, and which may mislead the
public.
(2) The following shall not be registered as a traditional
speciality guaranteed:
a) Names not fulfilling the conditions stated in Article 34
regarding traditional specialities guaranteed.
b) Names expressing the general feature of the product.
c) Names that may mislead the public about the characteristic of the
product.
ç) Names contrary to public order or general principles of
morality.
d) Names that are not protected, whose duration of protection have
expired or not used
in their own country although having been applied by persons
fulfilling the conditions set out in Article 3.
15
PART TWO Application and Objections
SECTION ONE
Application for Geographical Indication and Traditional Speciality
Guaranteed
Right of Application
ARTICLE 36- (1) The following shall have the right to apply for
registration of a geographical sign or a traditional product name:
a) Producer groups.
b)
Publicinstitutionsandorganizationsaswellasprofessionalorganizationsaccepted
as public institutions related with the product or geographical area
of the product.
c) Associations, foundations and cooperatives operating for public
interest in relation
to the product or authorized to protect the economic interests of
their members.
ç) The relevant producer in case the product is produced only by a
single producer,
provided that he proves this case.
(2) Within the scope of this Book producer means; the person
producing or processing
agricultural products, foodstuff, mining products, handicrafts and
industrial products or the persons who carry out any action in the
supply chain that affects the characteristics of the product subject
to the registration; producer groups means the association,
irrespective of its legal formation or composition, composed of
producers of the same products.
Application conditions
ARTICLE 37- (1) Geographical indication application shall include
the following:
a) Application form that contains information on the identity of the
applicant and
which category he is associated with concerning the persons with the
right to apply within the meaning of Article 36.
b) In case the applying natural or legal entity is the only producer
of the product, information and documents proving this case.
c) The name of the geographical indication requested to be
registered, information and documents about the eligibility of the
product as an appellation of origin or as a designation of origin,
the product group that it belongs to, and its compliance with the
defiinition of geographical indication.
ç) Description of the product; technical information and documents
describing the physical, chemical, microbiological and organoleptic
properties of the product, and if necessary its raw materials.
d) Information and documents clearly identifying and designating the
boundries of the geographical area.
e) Information and documents regarding the production method of the
product, and if relevant, local production techniques, practices and
traditions which give the product its speciality.
f) Information and documents proving the link between the
characteristics, reputation or other features of the product subject
to the registration within the meaning of geographical indication
definition and the defined geographical area.
g) Information and documents related to the historical background of
the product in the specified geographical area.
ğ) Information and documents explaining the control procedures in
detail in accordance with the provisions of Article 49.
h) Information explaining the use of geographical indication, and if
any, the procedures on labeling and packaging.
16
ı) Information that the application fee has been paid.
(2) Applications for traditional speciality guaranteed shall include
the following:
a) Application form that contains information on the identity of the
applicant and
which category he is associated with concerning the persons with the
right to apply within the meaning of Article 36.
b) The name of the traditional specialty guaranteed subject to the
registration and its product group, and information and documents
proving that it is in compliance with the description in Article 34.
c) Description of the product, technical information and documents
describing the physical, chemical, microbiological and organoleptic
properties of the product and, if necessary, of its raw materials.
ç) The description of production method where the raw material and
other components existing within the product are explained together
with their features and the product preparation techniques, which
indicate the product characteristic.
d) Information and documents explaining the control procedures in
detail in accordance with the provisions of Article 49.
e) Information and documents explaining the use of the traditional
specialty guaranteed and the labelling and packaging procedures, if
any.
f) Information that the application fee has been paid.
(3) Other procedure and rules regarding applications for
geographical indication and traditional specialty guaranteed shall
be determined by the implementing regulation.
Examination and publication of the application
ARTICLE 38- (1) The Office shall examine the applications on
geographical indication or traditional specialty guaranteed
according to Articles 33 to 37 and 39.
(2) If the information related to identity of the applicant is
missing in the application form, the application shall be deemed not
to have been made. The decision of the Office on deeming the
application not to have been made shall be final and may not be
subject to objection in the scope of Article 40.
(3) If it is found out that the conditions set out in Article 37 are
not met, except for the information regarding the identity of the
applicant, the Office shall request the remedy of these
deficiencies. If the missing information and documents are not
submitted in prescribed period or the submitted information and
documents do not meet the requirements, the application shall be
refused. If requested, additional period shall be granted not more
than two times to remedy the deficiencies.
(4) The Office may request opinion from relevant institutions and
organizations for evaluating technical information. In case fee is
demanded by relevant institutions and organizations, such fee shall
be paid by the Office.
(5) Applications examined and found eligible under this article
shall be published in the Bulletin.
(6) Procedure and rules regarding examination and publication of
application shall be determined by the implementing regulation.
Applications originating from foreign countries
ARTICLE 39- (1) Without prejudice to the provisions of international
agreement, in order to apply the provisions of this Code to
geographical indication or traditional specialty guaranteed
applications originating from foreign countries, in addition to the
conditions set out in Article 37 the following conditions shall also
be sought whether:
a) The geographical indication or traditional specialty guaranteed
subject to the application is being protected by the country of
origin or the international community of which the country of origin
is a member to.
17
b) The control requirements set out in Article 49 have been
satisfied in the country of origin.
c) Country of origin is providing equal protection for geographical
indication or traditional specialty guaranteed applications to be
made from Turkey.
(2) If the geographical indication or traditional specialty
guaranteed application originating from foreign country is identical
to geographical indication or traditional specialty guaranteed that
is protected in Turkey, the examination shall be carried out taking
into consideration the local and traditional use of similar names
and the risk of confusion by the consumer. The use of such
geographical indications or traditional specialties guaranteed shall
be allowed only under the condition that the country of origin is
clearly indicated and is visible on the label.
SECTION TWO Objection and Examination of the Objection
Objection and Examination
ARTICLE 40- (1) The applicant may file an objection with grounds and
in writing related to an application refused in the scope of Article
38 within two months of the date of notification of the decision.
(2) Third parties claiming that the registration request does not
conform with Articles 33 to 37 and 39 or the proprietor of an
earlier dated trademark claiming that the registration request does
not conform to Article 48 may file a written objection with grounds
within three months of the publication in the Bulletin of the
request for registration. The applicant shall be given information
of the objection and his opinion shall be requested.
(3) It is mandatory to pay the fee for objection within the
prescribed objection period and to submit information to the Office
that it has been paid. Otherwise the objection shall be deemed not
to have been made. No fee shall be charged for oppositions filed by
public institutions and organizations.
(4) Objections filed in line with the first and second paragraphs
shall be examined by the Board within the framework of the rules set
out by the implementing regulation. The Board may request opinion
from relevant institutions and organizations for evaluation of the
issues stated in the objection. In case fee is requested by the
institutions and organizations, such fee shall be paid by the
objecting party.
(5) The Office, if considers necessary, may encourage the parties
for reconciliation. Regarding issues on reconciliation, the
provisions of the Law No. 6325 shall be applied.
(6) If an amendment is made on the format or content of the
application upon examination of the objection, the final version of
the application shall be published in the Bulletin by also
indicating the amended section. No objections may be filed for this
publication.
(7) If, upon objection, the application is refused, the decision
shall be published in the Bulletin.
PART THREE Registration and Amendment Requests
Registration
ARTICLE 41- (1) If no objection has been filed against the
application within three months of its publication in the Bulletin
or the objections filed against the application have
18
decisively been rejected or if the application has been amended as a
result of an objection; the application shall be registered, entered
in the register and published in the Bulletin provided that the
registration fee has been paid and information on its payment has
been submitted to the Office within two months of the date of
notification.
(2) Register is open to the public. Upon request, a copy of the
register shall be provided.
(3) Procedure and rules related to the entry to the register,
publication and registration shall be determined by the implementing
regulation.
Amendment requests
ARTICLE 42 - (1) In case of a change in the specifications subject
to registration, an amendment request may be filed by parties with
legitimate interest provided that the amendment fee has been paid.
(2) The amendment request shall be examined within the provisions of
Article 38 and amendments that are found suitable shall be published
in the Bulletin. Objections in writing and with grounds may be filed
against the amendment within three months of its publication. These
objections shall be examined according to the Article 40. If no
objection has been filed or the filed objections hase been rejected,
the amendment shall be published in the Bulletin and become final as
of the date of its publication. The amendments shall be implemented
by the related parties within one year at the latest.
(3) Procedure and tules related to amendment requests shall be
determined by the implementing regulation.
Change of applicants or registering parties
ARTICLE 43- (1) In case the court decides that applicants or
registering parties of a geographical indication or traditional
specialty guaranteed fail to satisfy the requirements set out in
Articles 36 and 49 or if this situation is ex-officio found by the
Office or if a declaration of amendment is submitted in writing to
the Office by applicants or registering parties; this decision,
finding or declaration shall be published in the Bulletin. Within
three months of the publication, requests for amendment to the
application or registration records may be filed by relevant parties
satisfying the conditions specified in Article 36. If no request is
submitted or the submitted requests are found unsuitable, the rights
conferred by the geographical indication or traditional specialty
guaranteed terminates and this situation shall be published in the
Bulletin. In case of multiple requests, the Office shall accept the
most appropriate request in accordance with the procedure set out by
the implementing regulation.
(2) If an agreement is reached between the applicant or the
registrant and the relevant party who meets the conditions specified
in Articles 36 and 49, a request for amendment of the records shall
be made to the Office provided that the necessary documents are
submitted and the fees are paid. If the request is accepted, the
amendment shall be published in the Bulletin.
(3) Changes in the name, address, characteristics of the firm or the
title of the registrant of the geographical indication or
traditional specialty guaranteed shall be recorded in the register
and published in the Bulletin.
PART FOUR
Scope of Right, Use and Control
Acquisition of geographical indication protection and the scope of
rights arising from registration
ARTICLE 44 - (1) The protection of geographical indication related
to a product shall be acquired through registration within the
framework of this Code.
19
(2) Registrant of the geographical indication and those who are
entitled to use the registered geographical indication shall have
the right to demand the prevention of the following acts of the
third parties:
a) Direct or indirect commercial use of the geographical indication
or the emblem foreseen to be used in line with the Article 46 to
benefit from its reputation or related products which are under the
scope of the register or may be associated with those products,
although they do not satisfy the product properties specified in the
registration.
b) Misleading use or the imitation of the registered geographical
indication on a product which does not satisfy the product
properties specified in the registration or which is similar enough
to be associated with it, even if there are explanations such as the
true place of origin or specifications or the name of the product
accompanied by expressions such as style, type, method, as produced
in or other similar descriptions, even when translated into another
language.
c) Use of false or misleading explanation or indications about the
origin and the natural or essential qualities of the product stated
in the registration, on the inner or outer packaging, promotional
and advertising material or on any type of written material related
to the product having the geographical indication on it.
ç) Deceptive use of the emblem of registered geographical
indication.
(3) The rights conferred against third parties by the registration
of the geographical indication enter into force as of its
publication date in the Bulletin. However, the applicant shall be
entitled to institute legal proceeding for compensation in respect
of acts that occurred after the publication of the geographical
indication in the Bulletin, where those acts would, after
publication of the registration of the geographical indication, be
prohibited by virtue of that publication. The court may not decide
on the validity of claims raised before the registration is
published.
(4) Registered geographical indications shall not be deemed to have
become generic.
(5) Even when a portion of the name under geographical indication
protection is formed of the generic name of the product, the
protection conferred by geographical indication shall not cover
those generic names.
(6) Generic name is the name that has become the common name of the
product, although it relates to the region or the locality where
this product was originally produced or marketed. In determining
whether a name has become generic or not, the use of this name by
the public where the product is consumed and other related
legislation shall be taken into consideration.
(7) The registered geographical indication shall not confer any
exclusive rights to the registrant.
Acquisition of traditional specialty guaranteed protection and the
scope of rights arising from registration
ARTICLE 45- (1) Traditional specialty guaranteed protection shall be
acquired through registration within the framework of this Code.
(2) Registrants of the traditional specialty guaranteed and those
who are entitled to use the registered traditional specialty
guaranteed shall have the right to request the prevention of the
following acts of the third parties:
a) Use of the emblem foreseen to be used in line with the Article 46
to benefit from its reputation for products which do not carry the
properties specified in the traditional specialty guaranteed
register or its commercial use on products resembling the registered
product.
b) Deceptive use of the emblem of registered traditional specialty
guaranteed.
c) Giving any misleading statements or indications on the product’s
inner or outer packaging, promotional and advertising material or on
any type of written material related to the product that the product
carries the characteristics specified in the register even though
the
20
product does not carry the properties specified in traditional
specialty guaranteed register and the emblem foreseen to be used in
line with the Article 46 for the registered product.
(3) The rights against third parties conferred by the registration
of the traditional specialty guaranteed shall enter into force as of
its publication date in the Bulletin. However, the applicant shall
be entitled to institute legal proceeding for compensation in
respect of acts that occurred after the publication of the
traditional specialty guaranteed in the Bulletin, where those acts
would, after publication of the registration of the geographical
indication, be prohibited by virtue of that publication. The court
may not decide on the validity of claims raised before the
registration is published.
(4) The registered traditional specialty guaranteed shall not confer
any exclusive rights to the registrant.
(5) The protection provided to traditional specialty guaranteed
under this Code shall not prejudice rights that have been acquired
in the scope of other industrial property rights, in particular
geographical indications and trademarks.
Use of registered geographical indication and traditional specialty
guaranteed
ARTICLE 46- (1) Registered geographical indications and traditional
specialties guaranteed shall be used by those operating in the
production or marketing of products that comply with the
specifications provided in the registration. These persons shall
inform the registrant concerning their production and marketing
activities of the product subject to the geographical indication and
the traditional specialty guaranteed.
(2) The persons having the right to use the registered geographical
indication or traditional specialty guaranteed shall use that
geographical indication or traditional specialty guaranteed together
with the emblem on the product or its packaging. It is mandatory to
use emblem for geographical indications.
(3) In cases where geographical indication or traditional specialty
guaranteed cannot be used together with the emblem on the product
itself or its packaging due to the nature of the product, the emblem
and the registered indication or name shall be displayed by the
persons having the right to use them in a visible manner at their
businesses.
(4) Use of traditional specialty guaranteed without an emblem shall
not be governed by the provisions of this Code.
(5) Procedure and rules regarding the use of registered geographical
indications, traditional specialties guaranteed and the emblems
shall be determined by the implementing regulation.
Use in good faith
Relation with trademarks
ARTICLE 48- (1) After the registration of the geographical
indication, a trademark application filed in order to be used in the
forms stated in Article 44 or to be used for the goods or services
related to the geographical indication shall be refused, in case it
has been registered, it may be invalidated through legal proceeding.
(2) If a trademark identical with or similar to the geographical
indication was registered in good faith or the rights to use that
trademark were acquired through use in good faith before the
protection of the geographical indication, rights arising from
geographical indication shall not prejudice the registration of the
trademark application or the right to use the trademark in good
faith.
ARTICLE 47- (1) Provided that it has not been used to mislead the
public in
commerce, the use of a natural person's name or legal entity’s title
by those persons or their successors shall not be considered as
infringement of conditions stated in Articles 44 and 45.
(3) Taking into account the reputation, prestige and duration of use
of a registered trademark, names that may harm that trademark’s
existence or be misleading about its true origin due to being
identical with or similar to that trademark shall not be allowed to
be
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registered as geographical indication or traditional specialty
guaranteed upon objection by the earlier right holder.
Control of use
ARTICLE 49 - (1) Control of use of geographical indications and
traditional specialties guaranteed shall cover; any type of
operation related to controlling the conformity of their use to the
specifications indicated in the register during production,
marketing or distribution stages or their use in the market.
(2) Control shall be carried out by the control authority specified
in the application and whose competence has been approved by the
Office. Change of the control authority stated in the register may
be made upon approval of the Office.
(3) Control reports shall be submitted to the Office once a year
after registration is published in the Bulletin. However, in case of
complaints, the Office may request earlier submission of the
reports.
(4) If a deficiency is found upon examination of the control
reports, the registrant shall be notified and asked to correct the
deficiencies within six months. If the deficiency is not remedied
within the prescribed period or it is determined that control
activities were not carried out in line with the procedure, the
provisions of Article 43 shall be applied.
(5) The registrant may claim the costs related to the controls from
the parties subject to those controls.
(6) Procedure and rules for control shall be determined by the
implementing regulation.
(7) The control stated in this Book covers the controls made by the
control authority established by the applicant and shall not
prejudice the provisions of the Law on Veterinary Services Plant
Health Food and Feed dated 11.06.2010 numbered 5996 and other laws
related to the control of geographical indications and traditional
specialties guaranteed.
PART FIVE Termination of Right
SECTION ONE Invalidity
Invalidity Request and Grounds for Invalidity
ARTICLE 50 - (1) Invalidity of a geographical indication or
traditional specialty guaranteed may be requested from the court by
persons who have interest.
(2) The court shall decide the registered geographical indication or
traditional specialty guaranteed invalid, in case:
a) The register is not in compliance with any one of the conditions
set out in the Articles 33, 34, 35, 37 or 39,
b) The registration has not been made by those who have right to
apply in line with the Article 36,
c) Controls are not carried out as set out in Article 49.
(3) The legal proceeding concerning the invalidity of geographical
indication or
traditional specialty guaranteed shall be instituted against the
person who is recorded in the register as the registrant. The Office
shall not be addressed as a party to these proceedings.
Effects of Invalidity
ARTICLE 51 - (1) In case a geographical indication or traditional
specialty guaranteed has been decided as invalid by the court, the
legal protection provided by this
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Code for the registered geographical sign or traditional product
name shall be deemed not to have arisen.
(2) Without prejudice to claims of compensation by persons having
the right to use a registered geographical sign or traditional
product name for damages caused by bad faith, the retroactive
effects of invalidity shall not extend to the following:
a) Any final judgements for infringement of registration rights
reached and enforced prior to the decision of invalidity;
b) Contracts concluded and executed prior to the decision of
invalidity.
(3) Partial or total reimbursement of sums paid under the contracts
may be claimed on
grounds of equity, in scope of subparagraph (b) of second paragraph.
(4) Final court decision shall be notified to the Office by the
Court ex officio. The
geographical sign or traditional product name deemed as invalid,
shall be cancelled from the register and information regarding the
cancellation is published in the Bulletin.
SECTION TWO Withdrawal of Rights and Responsibilities
Withdrawal of rights and responsibilities provided by registration
ARTICLE 52 - (1) The registrant may withdraw from the rights
provided by the registration and the responsibilities related to
inspections. The demand of withdrawal is published in the Bulletin.
(2) If a request for the change of registrant is filed by natural or
legal entities who meet the provisions specified in Article 36,
within three months after publication in the Bulletin, this request
shall be examined in frame of the provisions stated in Article 43.
(3) If there shall be no request of change of the registrant within
three months, geographical sign or traditional product name shall be
cancelled from the register by the Office and the information
regarding the cancellation shall be published in the Bulletin.
Withdrawal shall produce effect from the date of its entry to the
register.
(4) Procedure and rules related to withdrawal shall be determined by
the implementing regulation.
PART SIX Infringement of Right
Acts deemed as infringement of geographical sign right
ARTICLE 53- (1) The following uses of a registered geographical sign
shall be considered as infringement:
a) Any direct or indirect commercial use of a registered
geographical sign or the emblem outlined in Article 46 in relation
to the products within the scope of the register or comparable
products in a way to exploit the reputation of the registered
geographical sign where they do not carry the properties specified
in the register.
b) Any deceptive use, replicas or any associative use about the
place of origin or the translation of the geographical sign or the
geographical sign itself even it is accompanied by expressions such
as 'style', 'type', 'method', 'as produced in'.
c) Any use of false or misleading indication or description about
the origin or the properties specified in geographical sign register
of the product, on the inner or outer packaging, promotional
material or on any type of written material related to the product.
ç) Any deceptive use of the emblem of registered geographical sign.
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(2) Those who have the right to use the geographical sign may
request a claim to be filed before court by notifying the registrant
through a notary public. If the registrant does not accept this
request or file a claim within three months from the notification
date, those who have the right to use the geographical sign may file
a claim by including the notification made to the registrant. The
legal proceeding shall be notified to the registrant. However, in
the event of a serious risk of harm, those who have the right to use
may request from the court for a precautionary ruling be made,
regardless of the time requirements. If a precautionary ruling is
made, the specified time requirement to file a claim is not applied.
(3) The fact that the record of registration of the geographical
sign is not presented on the product, packaging or invoice does not
exclude the action from being an act of infringement. However, the
records and signs related to registration shall be taken into
consideration during the evaluation of the fault.
(4) Where a geographical sign application is published, the
applicant is entitled to appeal to the Court for acts of
infringements stated in this article. If the aggressor has been
informed about the application and its scope, the requirement of the
application to be published is disregarded. If the court decides
that the aggressor violates the rights in bad faith, the act of
infringement shall be accepted prior to the publication of
application.
Acts deemed as infringement of traditional product name right
ARTICLE 54- (1) The following uses of a registered traditional
product name shall be considered as infringement:
a) Any commercial use of a registered traditional product name
together with the emblem outlined in Article 46 to exploit the
reputation of the registered traditional product name for products
which do not carry the properties specified in the register or the
commercial use of the emblem allocated to the traditional product
name on products which resemble the registered product.
b) Any deceptive usage of the emblem.
c) Any use of misleading indications or descriptions on the inner or
outer packaging, promotional and advertising material or on any type
of written material related to the product which does not carry the
properties specified in the traditional product name register and
the emblem outlined in Article 46.
(2) If an infringement of traditional product name right is
determined by those who have the right to use the traditional
product name may request a claim to be filed before court by
notifying the registrant through a notary public. If the registrant
does not accept this request or file a claim within three months
from the notification date, those who have the right to use the
traditional product name may file a claim by including the
notification made to the registrant. The legal proceeding shall be
notified to the registrant. However, in the event of a serious risk
of harm, those who have the right to use may request from the court
for a precautionary ruling be made, regardless of the time
requirements. If a precautionary ruling is made, the specified time
requirement to file a claim is not applied.
(3) Where a traditional product name application is published, the
applicant is entitled to appeal to the court for acts of
infringements stated in this article. If the aggressor has been
informed about the application and its scope, the requirement of the
application to be published is disregarded. If the court decides
that the aggressor violates the rights in bad faith, the act of
infringement shall be accepted prior to the publication of
application.
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Design and Product
BOOK THREE Design
SECTION ONE Design Right and Its Scope
ARTICLE 55 - (1) Design shall be the appearance of the whole or a
part of a product resulting from the features of, the line, contour,
colour, shape, material or texture of the product itself or its
ornamentation.
(2) Product means any industrial or handicraft item, including parts
intended to be assembled into a complex product, products like
packaging, presentations of more than one object perceived together,
graphic symbols and typographic typefaces, but excluding computer
programs.
(3) Complex product shall be a product which is composed of
components which can be replaced or renewed by disassembly and
reassembly of the product.
(4) A design shall be protected as a registered design in case it is
registered in accordance with the provisions of this Act and a
design shall be protected as non-registered design in case it is
presented to the public for the first time in Turkey.
Novelty and Individual Character
ARTICLE 56 - (1) Design shall be protected by this Code provided
that it is new and has an individual character.
(2) The design of a part of a complex product shall be considered to
be new and to have a distinctive character:
a) if the component part is mounted to the complex product, remains
visible during normal use of the complex product;
b) if the visible features of the component part fulfil the
requirements as to novelty and individual character.
(3) The normal use explained in this article shall mean use by the
end user, excluding maintenance, servicing or repair work.
(4) If an identical design isn’t presented to the public in any part
of the world;
a) before application or priority date for the registered design;
b) before the design is presented to the public for the first time
for non-registered
design,
it shall be accepted as a new design.
If the design differs only in immaterial details, it shall also be
accepted as identical.
(5) If overall impression created by a design on the informed user
differs from overall impression created by any design presented to
the public on the same user;
a) before application or priority date for the registered design;
b) before the design is presented to the public for the first time
for non-registered design,
it shall be accepted that this design has an individual character.
(6) In assessing distinctive character, the degree of freedom of the
designer in
developing the design shall be taken into consideration.
Disclosure
ARTICLE 57 - (1) Making available to the public means releasing on
the market, use, description, publication, promotion or so on by
means of exhibition and sale. Disclosure to a
25
third person under conditions of confidentiality shall not be deemed
as making available to the public.
(2) A disclosure shall not affect the novelty or individual
character, if a design for which protection is claimed has been made
available to the public during the 12-month period preceding the
date of filing of the application or, if priority is claimed, the
date of priority by the designer his successor in title or a third
person in consent with the designer or his successor or in abuse of
the relation with the designer or his successor.
The scope of protection and conditions out of the scope of
protection
ARTICLE 58 - (1) Design owner may use his rights arising from this
Code against designs which have no individual character compared to
his own design.
(2) In assessing the scope of protection, the degree of freedom of
the designer in
developing his design shall be taken into consideration.
(3) Design protection provided under this Act shall not prejudice to
the protection
prescribed by Intellectual and Artistic Works Act dated 05/12/1951
and numbered 5846 in the event that it covers the conditions
specified by this Code.
(4) The following shall not be in the scope of protection:
a) designs contrary to public policy or morality;
b) appearance characteristics dictated by the technical function;
c) appearance characteristics of the product which must necessarily
be reproduced in
its exact form and dimensions in order to permit the product in
which the design is incorporated or to which it is applied to be
mechanically connected to or placed in
ç) Designs that include the inappropriate use of sovereignty signs
taking place in the scope of Article 6 ter of the Paris Convention
and that covers signs, arms, certificates of achievement or
denominations which are outside of this scope but interest the
public order and becoming public knowledge in terms of religious,
historical and cultural values and for which registration permit
shall not be granted by relevant authorities.
(5) Designs that provide the connection establishment in different
ways as finite or infinite with each other of these units in a
modular system composed of different or equivalent units provided
that the conditions specified in Article 56 are met.
The scope of the design right and its limitations
ARTICLE 59 - (1) A design shall confer on its holder the exclusive
right to use it. Third parties without the consent of the design
right holder cannot produce, put on the market, sell, import, use
for commercial purposes or keep in stock for those puposes the
product in
which the design is incorporated or to which it is applied, or
cannot make a recommendation for contract.
(2) Unregistered design gives the right owner the right to prevent
acts mentioned in the first paragraph, in case copies of identical
designs or in respect of overall impression copies of
indistinguishably similar designs are used. A design by an
independent designer not being able to know through reasonable ways
that the protected design is presented to the public prior to his
design, shall not be deemed to have copied the design in the scope
of the protection.
(3) The rights conferred by a design right shall not be exercised in
respect of:
(a) acts done privately and for non-commercial purposes;
(b) acts done for experimental purposes;
(c) acts of reproduction for the purposes of making citations or of
teaching, provided
that such acts are compatible with fair trade practice and do not
unduly prejudice the normal exploitation of the design, and that
mention shall be made of the source.
26
c) training or reference purpose reproductions provided that they
comply with good faiths and they don’t endanger unnecessarily the
normal use of design and they show the sources.
ç) the equipment on ships and aircraft registered in another
country when these temporarily enter the territory of Turkey
concerned, and the importation of spare parts and accessories for
the purpose of repairing such craft, and the execution of repairs on
such craft.
(4) The use of the design of a component part used for the purpose
of the repair of a complex product so as to restore its original
appearance within three years after design is released to the market
for the first time shall not be deemed as an infringement of the
design right provided that no misleading information shall be given
about the source of these parts.
(5) The use of equivalent parts published by the Ministry of
Science, Industry and Technology, within the scope of the fourth
paragraph and the use within three years after the
design is released to the market for the first time shall not be
deemed as infringement of the design right.
(6) In concern with designs for which deferment of publication is
demanded, the provisions of second paragraph shall be applied until
visual representation of the design shall be published in the
Bulletin.
Right arising from previous use
ARTICLE 60- (1) Natural persons and legal entities that use the
design in the registered scope of protection independently of the
registered design in good faith for commercial purposes inside the
country or that took serious and true measures for use, shall be
given the right to use due to previous use and shall be limited to
these preparations to meet the reasonable requirements of the
enterprise. Right arising from previous use shall be registered and
published in the bulletin.
(2) Right arising from previous use cannot be extended and
transferred by granting license. Transfer of this right shall be
possible through the transfer of the enterprise.
SECTION TWO
Application, Examination and Registration
PART ONE
Design Application, Priority Right and Examination
Application requirements, classification and multiple application
ARTICLE 61- (1) Design application shall cover;
a) the application form containing information about applicant's
identity;
b) the visual representation that reflects the appearance of the
design and that enables
reproduction through publication;
c) the name of the product in which the design is incorporated or to
which it is applied; ç) the name of the designer or the names of
the members of the group having designed
the design;
d) information containing how registration request right has been
obtained from the
designer or the designers;
(2) If the subject of application consists of a two-dimensional
design and a request as per Article 66 shall be made to postpone the
publication, a sample of the design may be given instead of visual
representation as demanded in subparagraph (b) of first paragraph.
e) if any, the request of postponement of the publication; f) if
engaged, the information related to the attorney.
27
(3) Also a description of the visual representation or sample of the
design can be presented
and information related to the class of products in which the design
is used or applied can be indicated in the application. Product
name, product class and information given in the description shall
not affect the scope of protection.
(4) In the event that the fees related to the application shall not
be paid and the proof of payment shall not be submitted in time to
the Office, the application shall be deemed to be invalid.
(6) Written statements of the visual representation specified in
subparagraph (b) of first paragraph shall not provide exclusive
rights related to concepts they express.
(7) The registration demand for multiple designs can be made as
multiple applications provided that additional application fee shall
be paid. In multiple applications, except for the ornamentation,
each product design is used for and applied to, shall be of the same
class.
(8) Multiple applications or designs forming multiple registrations
shall be evaluated separately in the implementation of this Act.
(9) In case of multiple applications, if a registration is requested
for designs not complying with conditions specified in seventh
paragraph or the number of designs exceeds the determined number,
the Office requests relevant parties to carry out separate
applications for these designs. For each divided application,
application date shall be the date of the first application. If
priority right shall be demanded in the first application, this
right shall be recognized in each divided application.
(10) The designer, if his name shall not be indicated in application
form, has the right to request his name to be indicated as a
designer. But the designer may request his name to be kept secret.
The applicant shall describe how the design application right has
been obtained if not being the designer or if being one or some of
the designers.
(11) Spelling mistakes and obvious mistakes in fact in the design
application shall be corrected upon applicant’s request provided
that no change in the sample of the design shall be made.
(12) The number of designs that shall be part of a multiple
application or other procedure and rules on the application shall be
determined by a regulation.
Priority Right Claim and Its Effect
ARTICLE 62- (1) Natural persons or legal entities or their
successors that are citizens of one of the contracting countries to
the Paris Convention or Agreement Establishing the World Trade
Organization or natural persons or legal entities or their
successors that have a settlement or a commercial organization in
one of these countries, even if not being a citizen of any of these
countries, shall benefit from the priority right to make application
in Turkey for identical design in the scope of the provisions of
Paris Convention within six months starting from the date of their
application made duly by them to competent authorities for the
registration of the design or utility model. The priority rights not
be used within this period shall be forfeited. To benefit from the
priority right, the document of priority from the competent
authorities to which the first application has been made shall be
obtained.
(5) For the classification of the products for which design is used
or applied, the provisions of Locarno Agreement on International
Classification of Designs which our country ratified by Decree of
the Council of Ministers dated 5/8/1997 numbered 97/9731 shall be
applied.
(2) Natural persons or legal entities mentioned in the first
paragraph or their successors shall benefit from the priority right
in the frame of the provisions of first paragraph based on design
application made duly by them in any country that is not a party of
Paris Convention or Agreement Establishing the World Trade
Organization.
28
(3) The subsequent application made in the same country and covering
the same subject with the previous first application shall be deemed
as the first application in determining the priority right provided
that the previous application is withdrawn or is accepted as
withdrawn or refused without presentation to the public for review
and without having granted any right as of the date of the
subsequent application or forming a basis for a priority right. The
previous application shall not be taken as a ground for the demand
of a priority right.
(4) The provisions of this article shall be applied for natural or
legal entities mentioned in subparagraph (ç) of the first paragraph
of Article 3.
(5) Natural persons or legal entities mentioned in Article 3
exhibiting the design for which application has been made or the
product to which design has been applied on national or
international exhibitions in Turkey or international official
exhibitions or on exhibitions recognized to be official in
contracting countries to Paris Convention or Agreement Establishing
the World Trade Organization, shall benefit from the priority right
to make application in Turkey within six months starting from the
date of exhibition.
(6) If the design for which application has been made or the product
to which design has been applied shall be exhibited in a visible way
in the exhibition before the official opening date, then the
priority right shall commence from date of exhibition of product.
(7) If more than one application shall be made for a product that is
identical or similar to product exhibited in any exhibition, the
first exhibitant shall benefit from the priority right and if
product shall be exhibited at the same time, the first application
shall benefit from the priority right.
Priority Right and its effect
(3) If more than one priority rights are demanded for a design, the
priority right shall start of the date of the first priority right.
(4) The priority right based on exhibition shall not extend the
priority period granted by paragraph 1 of Article 62.
(5) Procedure and rules relating to the demand for the priority
right shall be determined by a regulation.
(8) In case the application shall be made on the basis of a priority
right within periods specified in first and fifth paragraphs,
applications by third persons and design registrations on behalf of
those after the priority date shall be invalid.
ARTICLE 63- (1) Request for the priority right shall be made with
the application. Related documents shall be submitted to the Office
within three months after the application date. Otherwise the
request for the priority right shall be deemed to be void.
(2) The priority right and provisions arise according to the date of
the application for the priority right according to Article 62 or
according to the dates of paragraphs 5 and 6 of Article 62.
Examination
ARTICLE 64- (1) Office examines compliance of the application with
conditions specified in Articles 61 and 63. As a result of
examination, if no deficiency in terms of conditions specified in
subparagraphs (a) and (b) of first paragraph of Article 61 has been
determined, application date finalizes as of the date of the receipt
of the application by the Office.
(2) If deficiencies determined as a result of examination in
accordance with Articles 61 and 63 are remedied in due time,
application date finalizes as the date of application. If
deficiencies concerning information and documents listed in
subparagraphs (a) and (b) of first
29
paragraph of Article 61 are remedied in due time, application date
finalizes as of the date of the remedy of deficiencies in question.
(3) Design protection shall begin from the date of the finalization
of the application.
(4) If deficiencies could not be remedied in due time, the
application shall be deemed invalid.
(5) Failure to remedy the deficiencies related with priority right
in due time shall only cause the loss of the priority right.
(6) The Office rejects the design registration requests;
a) not complying with design and product description,
b) violating public policy or morality,
c) made by natural persons and legal entities not included in the
scope of Article 3,
ç) containing the inappropriate use of sovereignty signs taking
place in the scope of
repeating Article 6 ter of Paris Convention and that covers signs,
arms, certificates of achievement or denominations which are outside
of this scope but interest the public order and becoming public
knowledge in terms of religious, historical and cultural values and
for which registration permit shall not be granted by relevant
authorities.
d) determined not to be new.
(7) If refusal decision given in subparagraph (b) and (ç) of sixth
paragraph shall be relating to only a section of the design, partial
refusal decision shall be given for only that section. As a result
of a partial refusal, the remaining section must provide the
protection conditions and maintain the design identity to ensure the
continuity of registration.
PART TWO Registration and Publication
Registration and Publication
ARTICLE 65- (1) A not refused finalized application in accordance
with Article 64 shall be recorded in the registry as registered a
design and published in the Bulletin.
(2) The registry shall be open to the public. An example of the
registration provided upon request and payment of the related fee.
(3) Procedure and rules relating to record in the registry,
publishing process and registration operations shall be determined
by a regulation.
Postponing of the publication
ARTICLE 66- (1) The applicant along with the application may request
the postponing of the publication for a period of thirty-month
starting from the application date or, if any, the priority date.
(2) An application demanding the postponing of the publication and
not rejected in accordance with Article 64 shall be registered and
recorded in the registry. But the information and documents related
to the visual representation of the design and application files
shall be made available to third parties examination.
(3) Demand for postponement of the publication regarding design
recorded in the registry shall be published in the Bulletin.
(4) The Office shall submit and publish all records and documents
relating to the application to third parties for review on the date
of expiration of the postponement of the publication or upon right
owner’s request on an earlier date. However, the publication fee
shall be paid prior to publication. If only a sample of the product
for which design is used for or applied to given during application,
then the visual representation of the design being suitable for
publication shall also be submitted. If these conditions shall not
be fulfilled in the
30
due time, protection provided by this Code as from application date
of design recorded in the registry shall be deemed invalid.
(5) Information in the registry and the application file must be
notified to the defendant to ensure that an infringement could be
sued within the postponement duration of the publication.
(6) The publication date of a design for which postponement of
publication has been demanded shall be the date of publication of
visual representation.
(7) These provisions can also be applied for some of the designs in
multiple applications.
PART THREE
Opposition and Examination of Opposition
Opposition to decision and registration
ARTICLE 67- (1) Applicants may raise a justified, written objection
against decisions given in accordance with Article 64 within two
months from the date of notification.
(2) Third parties may object in writing to the issuing of
registration certificate within three months from the publication
date by paying the fee claiming that the design is not fulfilling
the definitions specified in the first and second paragraphs of
Article 55, failing to meet the conditions specified in Articles of
56 and 57 and that the design is in the scope of the fourth
paragraph of Article 58 and subparagraph (c) of sixth paragraph of
Article 64 and that the application is made in bad-faith and that it
contains the unauthorized use of intellectual property rights.
(3) In case the fee for objections made in accordance with the
second paragraph has not been paid or the proof of payment has not
been submitted to the Office in due time, the objection shall be
deemed as invalid.
Examination of the Opposition
ARTICLE 68- (1) Oppositions made as per Article 67 shall be examined
by the Board.
(2) The applicant’s opinion shall be taken at the stage of
examination of the oppositions made against decisions given pursuant
to Article 64, if necessary.
(3) Objections made as per second paragraph of Article 67 shall be
notified to the applicant in order that he can state his opinions.
The board may request the opposing party to submit the additional
information and documents in order to deliver within one month after
the notification date. If requested additional information and
documents shall not be submitted to the Office in time, the
objection shall be examined in the scope of existing information and
documents.
(4) If it is determined that there are deficiencies in the
application in the scope of provisions of Article 64 and the
regulation during the duration of objection or at the stage of
examination of the objection, operations shall be maintained
starting from stage that has not been completed and decisions taken
shall be published in the Bulletin, if necessary.
(5) If objection made under the second paragraph of Article 67 shall
be accepted, registration of the design shall be deemed invalid. If
an objection made for a part of the design as per the second
paragraph of Article 64 for unauthorized use of intellectual
property right shall be accepted, only that part of the registration
shall be deemed invalid. At the end of partial invalidation,
remaining part shall meet the conditions related to protection and
keep the design identity to ensure the continuity of registration.
At the stage of examination of multiple applications, design
registrations not forming the subject of objection, but understood
to be
31
deemed invalid pursuant to additional documents attached to the
objection, shall ex-officio be deemed invalid in accordance with
procedures specified in paragraph three.
(6) If registration shall be decided to be invalid under this
Article, invalidity results specified in Article 79 enter into
force. Invalidity decision shall be published in the Bulletin.
PART FOUR
Term of Protection and Renewal
Term of Protection of the Design and Renewal
ARTICLE 69- 1) The term of protection of a registered designs covers
a period of five-year as from the date of filing. This period may be
prolonged in total up to twenty five- year by means of renewing in
five-year periods.
(2) The term of protection of unregistered designs covers a period
of three-year as from first presentation date to the public of the
design for which protection is demanded.
(3) The registration of the design is renewed upon the request of
the design owner provided that the proof of payment of the renewal
fee is submitted to the Office in time.
(4) Request for renewal shall be made by the design owner within six
months before the expiry of the protection date and the information
demonstrating payment of the renewal fee shall be submitted to the
Office within the same period. If no request is made or the
information demonstrating payment of the renewal fee is not
submitted to the Office within this period, renewal request may be
made within six months after the expiry of the protection date
provided that additional fee is paid.
(5) The renewal shall take effect from the day following the
expiration of the previous day protection period. The renewal
operation shall be recorded in the register and published in the
Bulletin.
(6) Design right related to non-renewable designs expires on the day
when duration of protection ends.
SECTION THREE Right Ownership and Disseize
Right Ownership
ARTICLE 70- (1) Design right belongs to the designer or his
successors and it may be transferred.
(2) If design application or design belongs to more than one person,
the partnership claim on the right shall be determined pursuant to
the agreement concluded between the parties and if there is no such
an agreement between the parties, it is determined in accordance
with the provisions related to joint ownership in the Turkish Civil
Code dated 22/11/2001 numbered 4721. Each right owner can make the
following actions on his behalf independently of the others:
a) he can freely dispose on the share belonging to himself;
b) he can use the design by means of notifying the other right
owners;
c) in the event that rights arising from design are infringed in any
way, he can sue a
claim against third persons. In this case, a notification shall be
sent by the claimant to the other right holders in order that they
can participate in the legal proceeding in question.
(3) Right owners shall be obliged to decide unanimously to grant
third persons a license for those to use the design. However, in
case of absence of unanimity to grant a
32
license, the court may grant the licensing authority to one or more
of the right owners on an equitable basis.
(4) It is not possible to transfer the design application or design
registration or to divide those to establish any right on them, even
if more than one person becomes right owner of these.
Disseize of design
ARTICLE 71- (1) If an application for design is made by a person not
being the legal right owner or if the design is registered on behalf
of this person or if an unregistered design shall be presented to
the public by a person not being the legal right owner, then the
person claiming to be the legal right owner may demand the court to
transfer the design owner right to himself or to be recognized as
the owner of the design without prejudice to his rights and
demands arising from the design right.
(2) If a partial right shall be alleged on the design, the
recognition of the right owner
may be demanded in accordance with the first paragraph and according
to rules related to joint ownership.
(3) If demands specified in first and second paragraphs are not
alleged within three years after the publication of the registered
design or the presentation to the public of the unregistered design,
these become void. But in the event that the person not being the
legal right owner acts in bad faith, lapse of time shall not be
applied.
(4) Demands alleged in legal proceedings instituted in accordance
with provisions of this article, final decisions given by the court
or any other circumstances finalizing the legal proceedings shall be
registered and published upon demand in the Bulletin and have effect
on third persons in good faith as of the date of registration in the
register.
(5) If an application is registered while the legal proceeding
continues, the proceeding regarding application’s disseize turns
into a proceeding regarding design’s disseize.
Results of termination of disseize
ARTICLE 72 - (1) If any change in ownership of the design occurs
pursuant to the provisions of Article 71, all rights of third
parties related to design in question terminates when this change is
entered in the registry.
(2) If a person understood not to be the legal right owner later or
the person making a license agreement with this person, begins to
use the design before the record date in the registry of the legal
right owner or performs serious preparations to use the license, he
may request the legal right owner to grant a non-exclusive license
within two months. This period
starts from the notification date of the registration of the real
right owner by the Office to the concerned persons.
(3) In case a person understood not to be the legal right owner
later or the person receiving a license from this person acts in bad
faith using or making serious preparations to use the license, the
provisions of the second paragraph shall not apply.
SECTION FOUR Employees’ Designs
Ownership in service relationships and in other work relationships
ARTICLE 73- (1) Unless otherwise agreed upon due to special
contracts made between parties or because of the nature of work,
right owners of designs that are made by employees’ due to their
obligations in a business organization or right owner of designs
that
33
are performed by employees based on experiences and operations of
business organization shall be the employer.
(2) The right owner of designs that are carried out by employees
outside the scope of the first paragraph by means of benefitting
from information and tools related to general activity in their
business organization shall be the employer, upon request.
(3) The provisions regarding employees’ designs shall also be
applied to designs of students as well as designs of interns
rendering service free of charge without subjecting to a certain
time and designs carried out by instructors specified in
subparagraph (l) of first paragraph of Article 3 of Higher Education
Law dated 4/11/1981 numbered 2547 as a result of scientific studies
or researches.
(4) In the designs made in the frame of an employment contract not
covered by the scope of a service relationship, the right owner
shall be determined in the frame of provisions of the contract
concluded between the parties.
Pricing for the right related to the designs prepared by employees
ARTICLE 74- (1) Employee shall have the right to request a price to
be determined by taking into consideration the importance of the
design in the scope of the second paragraph of Article 73. If
parties may not be able to agree on the price, the price shall be
determined by the court.
(2) Sharing of revenue obtained from designs fulfilled by
instructors in the scope of third paragraph of Article 73 between
the higher education institution and the designer shall be
determined by the board of directors of the relevant higher
education institution to be given at least half of the revenue to
the designer.
SECTION FIVE License
(2) The license may be granted in exclusive or non-exclusive form.
Unless otherwise agreed in the license contract, the license shall
not be exclusive. In the non-exclusive license, licensor shall use
the design himself or can grant other licenses to third parties. In
the exclusive license contracts, licensor shall not grant license to
another person and shall not use the design himself as long as it
reserves his right expressly.
License
ARTICLE 75- (1) A design right may be subject to a license
agreement.
(3) Unless otherwise agreed in the license contract, licensors
cannot transfer their rights arising from the license to third
parties or grant sub-licenses.
(4) Unless otherwise agreed in the license contract, the licensor
can perform all and any actions related to the use of design during
the duration of the license. The licensee shall be obliged to comply
with the terms of the license contract. Otherwise, the design owner
can claim his rights arising from the design to the licensee.
Liability arising from the transfer of the right or granting of the
license
ARTICLE 76- (1) In case it is later determined that the person
transferring the design right arising from the application or
registration or granting a license shall not be authorized to make
such operations, the person in question shall be therefore liable
against those concerned.
(2) If a design application is withdrawn or refused or if a design
registration is cancelled or deemed invalid, the provisions of
Article 79 shall be applied provided a more comprehensive liability
through contract in terms of a person transferring his design right
or
34
licensor has not been foreseen by the parties. Time to demand the
compensation arising from the provision of this article’s provision
starts on the date of the final court decision forming basis for
liability proceeding.
SECTION SIX Termination of the Right
PART ONE Invalidity
(a) if it is proven that the design is not fulfilling the
definitions specified in the first and second paragraphs of Article
55, failing to meet the conditions specified in Articles of 56 and
57 and that the design is in the scope of the fourth paragraph of
Article 58 and subparagraph (c) of sixth paragraph of Article 64 and
that the application is made in bad-faith and that it contains the
unauthorized use of intellectual property rights.
Invalidation
ARTICLE 77- (1) The decision related to invalidity of the design
shall be given by the court in the following situations:
b) if it is proven that right belongs to another person or other
persons;
c) if filing date of an identical or similar design opened to the
public later shall be prior to the filing date of a registered
design.
(2) If a request for invalidation is made for a part of the design
as per subparagraphs (b) and (ç) of the sixth paragraph of Article
64 for unauthorized use of intellectual property right shall be
accepted, only that part of the registration shall be deemed
invalid. At the end of a partial invalidation, remaining portion
must meet the conditions related to protection and keep the design
identity to ensure the continuity of registration.
Request for Invalidity
ARTICLE 78- (1) Persons concerned can request the court to give a
decision related to invalidity of design except in circumstances as
stated in the second paragraph.
(2) Invalidity of design may be claimed only by an earlier right
owner as per subparagraph (c) of first paragraph of Article 77 and
may be claimed only by the design right owner as per Articles 70 and
73.
(3) Legal proceeding may be instituted in concern with invalidity of
design during
duration of protection or within five years the following the
expiration design right.
(4) Invalidation proceeding shall be instituted against person
registered as the right owner in the registry on date of the claim.
Also a notification shall be sent to those that are registered in
the registry as the right owners of the design so that they can
participate in the
proceeding.
(5) Invalidity proceedings for unregistered designs shall be
trialled against person
claiming to be the right owner.
The effect of invalidity
ARTICLE 79- (1) Decision related to invalidity of the design causes
a retroactive effect and protection by this Code shall be deemed as
null and void.
(2) Without prejudice to compensation claims of sufferers due to
gross negligence or bad faith of the design owner, retroactive
effect of invalidation decision shall not affect the following
conditions:
35
(a) final and implemented decisions of courts due to infringement of
the rights provided by design prior to the invalidity decision;
(b) contracts established and performed prior to the invalidity
decision.
(3) The return of fee paid pursuant to contracts in the scope of
subparagraph (b) of second paragraph can be requested partially or
fully on an equitable basis.
(4) The final decisions regarding the invalidity of the design shall
be effective for everyone. After finalization of the invalidation
decision, the court shall send this decision to the Office
ex-officio. The design shall be cancelled in the registry by the
Office and published in the Bulletin.
PART TWO
Other Termination Conditions and Its Results
Termination and Its Results
ARTICLE 80- (1) Design right shall terminate in the following
conditions:
a) if the duration of protection expires and registration shall not
be renewed in time;
b) if right owner relinquishes his right.
(2) Application or registration owner can relinquish his design
right wholly or
partially.
(3) Waiver action shall be notified in written to the Office. Waiver
action shall have
effect as of the record date of registration and shall be published
in the Bulletin.
(4) Design owner shall not be able to relinquished his design right
without the consent
of right and license owners registered in the registry.
(5) If right ownership on design is claimed by a third party and an
interlocutory
injunction taken in this matter shall be registered in the registry,
then the rights arising from a design cannot be relinquished without
the consent of this person.
SECTION SEVEN Infringement of Design Right
Acts deemed as infringement of design right
ARTICLE 81- (1) The following acts shall be deemed as infringement
of a design right:
a) to produce, put on the market, sell, offer for contracting,
import, use for commercial purposes or stock for those purposes an
identical or similar product in which the design is incorporated or
to which it is applied without the consent of the right holder;
b) to broaden the rights granted by the design owner through
licensing or to transfer these rights to third parties without
consent;
c) to disseize the right of a design.
(2) In the event that application shall be registered and published
as per Article 65, registration owner has the right to file a civil
action due to infringements of the design right specified in this
article. If an infringer is informed about the application and the
scope of application, the publication of application shall not be
taken into account. If the court decides that infringer acts in bad
faith, the existence of this infringement shall be deemed to be
prior to the publication as well.
(3) The absence of the record on the product, packaging or invoice
showing that the design in the scope of protection is registered
shall not mean that acts indicated in this article would not be
accepted as infringement of the design right.
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(4) As regards unregistered designs, designs presented to the public
pursuant to Article 57, the right owner has the authority to
institute the legal proceeding due to the violations of the design
right.
BOOK FOUR Patent and Utility Model
SECTION ONE Patent Right
PART ONE Conditions of Patentability
Patentable inventions and exceptions to patentability
ARTICLE 82 - (1) A patent shall be granted to the inventions in all
fields of technologyproviding that the invention is new, involves an
inventive step and is susceptible to industry.
(2) Below mentioned shall not be considered as inventions. In case
the application for a patent or the patent itself are involved in
the subjects or activities mentioned below, this subject only or the
activity itself shall stay out of patentability.
a) Discoveries, scientific theories and mathematical methods;
b) mental acts, business activities or game related plans, rules and
methods;
c) computer programs;
ç) products with aesthetical creations , belles-lettres, artworks
and treatise;
d) presentation of the information.
(3) Below mentioned inventions shall not be granted a patent:
a) inventions violating public order or public moral;
b) biological processes relating to plant varieties or animal races;
or intending to
generate plant varieties or animal races with the exception of
microbiological processes or products obtained in the result of such
processes;
c) all treatment modalities including the diagnosis methods which
are intended to be applied to human or animal bodies and surgical
methods;
ç) discovering only one of the parts of human body including human
body and a gene sequence or a partial gene sequence in the various
phases of their generation and evolution;
d) the human cloning processes, the changing processes of genetic
identity of human sextinked inheritance, using human embryos for
industrial or commercial purposes, changing processes of genetic
identity in a way that may agonize the animals without providing any
significant medical avails for human or animals and animals that are
obtained in the result of such operations.
(4) Within the scope of subparagraph (a) of paragraph three,
commercial use of the invention being prohibited by legislation
shall not necessarily mean that this use is violating public order
or public moral.
(5) The microbiological process that is specified in subparagraph
(b) of paragraph 3 expresses any operation which includes
microbiological materials, processed with microbiological materials
or in the result of which microbiological materials are formed;
plant or animal production procedures that are consisting of
basically biological processes, hybridization or selection that are
completely natural.
37
(6) The provision mentioned in subparagraph (c) of paragraph 3 shall
not be applied to the products, especially the substances and
compositions which are used in any methods that are mentioned in the
same option.
Novelty, inventive step, applicability to industry
ARTICLE 83 - (1) An invention which is not included in the state of
the art shall be considered as novel.
(2) The state of the art shall cover everything reachable by the
society and which is, before the application is submitted, presented
anywhere in the world by introducing in written or verbally or made
public by usage or any other ways.
(3) The published contents of the applications which are submitted
on or after the application date and the first contents of national
patent and utility model applications which are made before
application date shall be considered as the state of the art. This
provision also covers,
(a) the applications for a patent and utility model which are
entering the national level in accordance with the conditions
specified in the regulation according to Articles 22 and 39 of
Patent Cooperation Treaty, within the frame of the applications for
a patent which are made in accordance with Patent Cooperation Treaty
which was ratified by the Council of Ministers' Decision dated
01.05.1996 and numbered 96/7772,
(b) the applications which meet the requirements specified in the
paragraph 5 of Article 153 of European Convention Relating to the
Formalities Required for European Patent Applications which was
ratified by the Council of Ministers' Decision dated 06.07.2000 and
numbered 2000/842; the applications for a patent based on an
international application; and the applications for a European
Patent in which Turkey was determined and the related fee was paid
according to subparagraph two of Article 79 of European Patent
Convention.
(4) In consideration of the state of the art, the invention which is
not obvious according to the expert of the area to which the
invention is related, shall be considered that it includes inventive
step.
(5) The contents of the applications and documents that are taken
into consideration in terms of the state of the art according to
paragraph three shall not be considered in evaluation of the
inventive step.
(6) If the invention is producible and usable in any industrial area
including agriculture, it shall be considered as applicable to
industry.
Statements which do not affect on the invention to be granted a
patent or a utility model
ARTICLE 84- (1) As well as being effective on the invention to be
granted a patent or a utility model, it shall not affect the
invention to be granted a patent or a utility model in the cases
that a statement was made within twelve months prior to the
application date or within twelve months prior to the date of
priority right if priority right was demanded and in the cases of
the situations mentioned below:
a) the statement is made by the inventor;
b) the statement is made by an authority to which the application
for a patent was made and the information released by this
authority;
1) is mentioned in the inventor’s other application and the
mentioned application is revealed by the related authority even
though it was required not to be revealed;
2) is mentioned in the application that was filed by a third party
who obtained the information directly or indirectly from the
inventor without the inventor’s permission.
c) The statement regarding the invention is made by a third party
who obtained the information directly or indirectly from the
inventor.
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(2) According to paragraph 1, everybody who is holder of right to
demand a patent or utility model at the time in which the
application is made shall be considered as the inventor.
(3) The results led by the conduction of the paragraph 1 shall not
be subject to time limit and can be alleged anytime.
(4) The party who alleges that the paragraph 1 should be conducted
shall be obligated to prove the fulfillment of conditions or prove
that it is expected to be so.
PART TWO Scope of a Patent Right
Scope of a patent right and its limits
ARTICLE 85 - (1) The patentee avails himself of the patent right
without any exceptions of where the invention was made, its
technological area and whether the products are imported or are
domestic.
(2) The patentee has a right to claim the prevention of the
practices mentioned below in case that they are performed without
his consent:
a) producing, selling, using or importing the goods subject to a
patent or keeping those at hand for such purposes and for other
reasons than personal needs;
b) using a process that is subject to a patent;
c) offering others to use the process patent the use of which is
known or should be known to be prohibited;
ç) selling, using or importing the goods which are directly
obtained by the process subject to a patent or keeping them at hand
for such purposes and for other reasons than personal needs.
(3) The practices mentioned below shall be out of the scope of the
rights provided by a patent:
a) practices which do not involve industrial or commercial purposes
and are confined to special purposes;
b) trial practices involving the invention subject to a patent;
c) trial practices involve the performances of the invention subject
to a patent in order to registrate drugs including necessary tests
and experiments needed for this purpose;
ç) using the drugs prepared in pharmacies without a mass production
in order to prepare only one prescription and practices regarding
drugs prepared this way;
d) using the invention subject to a patent in making and running
ships, space vehicles, airplanes or land transport vehicles for
party countries of Paris Convention or in meeting the needs of such
vehicles; using the mentioned vehicles provided that they are within
the borders of Republic of Turkey temporarily or accidentally.
e) provisions of Article 27 of International Civil Aviation
Agreement which is approved by the Law dated 06.05.1945 and numbered
4749 and practices regarding aircrafts of a country in which the
provisions of this Article are being applied.
(4) A small farmer whose definition is made in the Law on Protection
of Breeder’s Rights for New Plant Varieties dated 01.08.2004 and
numbered 5042 has the right, in his own land which they operate, to
use the reproduction material that derived from the product in the
result of the production made by a patented product provided from
the patentee; or sold by his permission; or obtained by another
commercial way, in order to do new productions in their own land
which they operate. This tenancy shall be subject to the provisions
of the Law number 5042.
(5) The farmer has a right to use the patented breeding or other
animal reproduction material provided from the patentee; or sold by
his permission; or obtained by another
39
commercial way for agricultural purposes. This tenancy covers the
use of animals or other animal reproduction material in order to
maintain their own agricultural strength. The procedure and rules
regarding the use of this right shall be determined by regulations.
(6) The subject of the patent shall not be used in a way that will
cause harm for the law, morals, and public order. This use shall
also be bound up with current or future definite or
indefinite-statutory prohibitions and restrictions.
Preventing the indirect use of the invention
ARTICLE 86 - (1) The patentee has a right to prevent the factors or
equipment regarding a part which makes the practice of the invention
subject to a patent possible and constitutes the basis of the
invention from being released third parties to parties who do not
have an authority to use the invention subject to a patent. In order
to implement this provision, the subject third parties must be aware
that such factors or equipment are sufficient to use the invention
and must be aware of using them for this purpose; or the situation
must be clear enough.
(2) If the factors or equipment mentioned in the paragraph 1 are
products which can be found anytime in the market, the provision of
the paragraph 1 shall not be implemented in case the third parties
do not induce the subject unauthorized parties to perform such
practices.
(3) The performers of the practices specified in the subparagraph
(a), (b), (c) and (ç) of the paragraph 3 of Article 85 shall not be
considered as those who are unauthorized to use the patent according
to the provision of paragraph 1.
Rights conferred by previous use
ARTICLE 87 - (1) The patent applicant or the patentee shall not have
a right to prevent the persons who used the invention domestically
in good faith on or before the application date; or the persons
against whom serious and real measures are taken for their use, from
keeping using the invention subject to a patent in the same way or
from beginning to use them in accordance with the measures taken.
However, the subject persons keeping using the invention subject to
a patent or using them in accordance with the measures taken can be
allowed as much as to meet the reasonable needs of the business they
own. The conferred right remaining from previous use cannot be
expanded by issuing a license and this right can only be transferred
together with the business.
(2) Practices regarding the products that are offered for sale by
the persons mentioned in paragraph 1 shall be out of the scope of
the rights provided by the patent.
Legal monopoly
ARTICLE 88 - (1) When a patent is granted for an invention regarding
subjects included in field of activity of state economic enterprises
the complete capital of which belongs to the State; and which are
established to be producing and commercializing monopolistic goods
and services observing public interest; and have monopoly rights in
the goods and services they provide due to the public services they
perform, allowing the monopoly right holder to use the invention
shall be dependent on the patentee’s permission. The monopoly right
holder shall be obligated to use the inventions which can provide
considerable economic benefits and a significant technical progress
in the industrial area which they deal with by obtaining the right
to use.
(2) The monopoly right holder, in order to obtain the right to use
the invention subject to a patent, has a right to claim from the
patentee to permit. The patentee can ask the monopoly right holder
to take over the patent. The price which should be paid in exchange
for using the invention subject to a patent or in case of the
monopoly right holder taking over the
40
patent shall be determined by the parties. The subject price shall
be determined by the court in case the parties fail in coming to an
agreement.
(3) On condition that the provisions of paragraph 2 are reserved, if
the monopoly is established after the patent is granted, the
patentee has a right to claim from the monopoly right holder to also
take over the business or the facility in which the invention is
being used. The subject price shall be determined by the court in
case the parties fail in coming to an agreement.
(4) If the invention subject to a patent is not available to be used
due to an existing legal monopoly, the annual fee for the subject
patent shall not be paid.
Scope of the protection
ARTICLE 89 - (1) The extent of the protection provided by the patent
application or the patent itself shall be determined by claims.
However, the description and the drawings shall be used in
interpreting the claims.
(2) The claims shall not be interpreted based on the limits of the
meaning of the words used. However, when determining the extent of
the protection, the claims shall not be extended in way covering the
ideas that had been thought of by the inventor but had not been
demanded in the claims, and also in a way to cover the features
which are expected to arise by interpretation of the description and
the drawings by a skilled person in the art.
(3) The claims are interpreted in a way that the application or the
patentee shall be provided with the protection they deserve; and the
third parties shall be provided with a situation displaying positive
assertion in a reasonable level in terms of the extent of the
protection.
(4) The extent of the protection provided by the patent application
shall be determined by the published claims of the application for
the time passed until the patent is granted. But the situation of
the patent when granted or its situation after the objection or
invalidity procedures shall determine the protection provided from
the application retroactively on condition that the protection scope
is not extended.
(5) The factors which are equivalent to the factors mentioned in the
claims by the time in which the violation was alleged to be existing
are considered, too, in determining the extent of the protection
provided by the patent application or the patent itself. A factor,
in essence, shall be considered as equivalent to the factor which is
generally demanded in the claims if it is functioning the same way
as the factor demanded in the claims; it is fulfilling the function
requirements in the same way and it is leading to the same
conclusion.
(6) During the procedures which are required to determine the extent
of the claims regarding granting the patent or during the validity
of the patent, the patent application or the patentee’s statements
shall be considered in order to determine the extent of the
protection.
(7) If the patent includes samples regarding the invention, the
claims shall not be interpreted as limited to such samples. The
product or the method shall not be left out of the extent of the
protection provided by the claims especially in cases that the
additional features of the product or method do not exist among the
samples mentioned in the patent; do not cover the features of such
samples; or cannot reach every objective or feature specified in
such samples.
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SECTION TWO
Application, Granting the Patent and Objection
PART ONE Application and Priority Right
Required documents for patent application and confirming the
application date ARTICLE 90 - (1) A patent application includes;
a) application form;
b) description explaining the subject of the invention;
c) the claims;
ç) the pictures which were referred in the description or claims;
d) the abstract;
e) information of the payment for the application fee.
(2) Description, claims, abstract and drawings, if any, may be
submitted in the
language of one of the countries which are parties of Paris
Convention or Agreement on Establishing the World Trade Organization
or the countries performing the reciprocity principle within the
application.
(3) The patent application date shall be confirmed and the
application process begins as of the date of submission of all the
factors mentioned below to the Office.
a) The request of granting a patent.
b) The applicant’s identity and contact information.
c) A description written in Turkish or in one of the languages
mentioned in paragraph
2 or a referral to a previous application.
(4) If the invention is based on a genetic source or a traditional
knowledge related to
the genetic source, the explanation regarding where the source is
obtained from shall take place in the patent application.
(5) The inventor shall be declared in the application. However, the
inventor may ask to remain anonymous. In case the applicant is not
the inventor or is only one or a few of the inventors, such persons
shall be obliged to explain the way they obtained the right to file
a patent application in the application documents.
(6) The inventor has a right to request from the applicant or
patentee to act as the inventor and to be declared their names.
(7) Procedure and rules regarding the application shall be
determined by a regulation.
The Unity of Invention and Divisional Applications
ARTICLE 91 - (1) A patent or a utility model application includes
one single invention or a group of inventions which are gathered to
form a single general inventive concept. The applications which do
not meet the requirements of this provision shall be divided into
separate applications upon the applicant’s request or the
notification of the Office.
(2) Divisional application can be filed for every application upon
the applicant’s request regardless of the unity of the invention.
(3) The divisional application shall be filed in a way that it shall
not go beyond the extent of this subject of the application in
relation to the application being processed. The annual fees
remaining from the past years shall be paid, too, together with the
divisional application.
42
(4) The application date for every divisional application shall be
the date of the first application. If a priority right was claimed
with the first application, every divided application shall be
entitled to this right.
(5) Other procedure and rules regarding divided applications shall
be determined by a regulation.
(6) The divisional applications which are not filed in accordance
with this article shall not be admitted for process.
Explanation of the invention, description, claims and abstract
ARTICLE 92 - (1) The invention shall be explained by a person who is
skilled in the art which is related to the subject of the invention,
in a very clear and complete way that can provide the invention with
practicality using the drawings that are in the patent application,
description and claims or are referred in the description or claims.
(2) If the invention is related to a biological material which
cannot be reached by public and cannot be defined by the person
skilled in the art which is specified in the patent application
sufficient enough to make the invention understandable to be
applied; or if it includes the use of this material; the invention
shall be considered as it is explained in conformance with paragraph
1 on condition of the material being entrusted.
(3) If the biological material that has been entrusted according to
paragraph 2 is no longer reachable by the establishment by which the
material is entrusted; on condition that this material is
re-entrusted in accordance with Budapest Treaty on International
Adoption of Entrusting Microorganisms in Terms of Patent Procedure
which was ratified by the Council of Ministers' Decision dated
08.05.1997 and numbered 97/9731; and a copy of the certificate
issued by the establishment by which the material is entrusted
regarding receive of the material is sent to the Office within four
months as of the entrustment date by indicating the number of the
patent application or its document, this reach shall be considered
as uninterrupted.
(4) The basis of the claims shall be the description; the claims
must be defining the subject that is demanded to be protected; clear
and essence and must not go beyond the invention which defined in
the description.
(5) The abstract has an aim of providing technical information. It
shall not be used for any other purpose especially not for
determination of the extent of the protection or implementing
paragraph 3 of Article 83.
(6) The requirements regarding the biological material being
entrusted shall be determined by a regulation.
Priority Right and its effect
ARTICLE 93 - (1) Any person or his successor who have filed an
application for a patent or utility model in any country including
Turkey which are parties of Paris Convention or Agreement on
Establishing the World Trade Organization, in order to file an
application for the same invention in Turkey, shall benefit from the
priority right within twelve months as of the date of the first
application is filed.
(2) According to national legislation of any country which is a
party of Paris Convention or Agreement on Establishing the World
Trade Organization; or according to the bilateral or multi-lateral
agreements made by such countries or according to this Code, it
shall be approved that every application that is equivalent to
national application filed in due form shall result in being
entitled to the priority right.
(3) The date of a national application that is filed in due form
shall be considered as application date regardless of the result of
the application.
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(4) Whereas the position of the previous application and the current
application that consists of the same subject, both of which are
made to the same country, the current application can be considered
as the first application when determining the priority right on
condition that the previous application is withdrawn, considered to
be withdrawn or rejected on the date of the current application, but
before it is submitted for public inspection and without leaving any
rights behind and cannot form a basis for a priority right. In this
case, the previous application shall not be used as a basis for a
priority right.
(5) If the first application is filed with an authority of
industrial property of a country which is not a party to the Paris
Convention or Agreement on Establishing the World Trade
Organization, the provisions of paragraph 1 and 4 shall be applied
to this application, in case this authority confirms that the first
application that is filed to Turkey generates a priority right under
the effects and conditions equivalent to those specified in the
Paris Convention.
(6) Natural or legal entities who present a product that includes a
subject of a patent or a utility model in national or international
exhibitions held in Turkey or in official exhibitions or in the ones
known to be official in party countries of the Paris Convention
shall benefit from a priority right regarding an application to be
granted a patent or a utility model in Turkey within twelve months
as of the date of presentation in the exhibition.
(7) The priority date shall have the sanction of application date in
fulfilling the requirements of paragraph 2 and 3 of Article 83 and
paragraph 3 of Article 109.
Claiming the priority right and related provision
ARTICLE 94 - (1) The claim of the priority right is made, thereby
paying the fee, together with the application or within two months
as of the date of application; and the documents regarding this
claim shall be submitted to the Office within three months as of the
date of application. Failing this, it shall be considered that the
claim of the priority right is not made.
(2) More than one demand of priority right shall be made in the
application regardless of the demands being originated from
different countries. When applicable, more than one priority right
can be demanded for every claim. In case more than one priority
right is demanded, the time periods that begin as of the date of
priority right starts with the preference with the earliest date.
(3) If one or more than one priority rights are demanded, the
priority right shall cover only the factors that are included in the
application or applications from which the priority right is
originated.
(4) Even though, specific factors of the invention for which the
priority right is demanded are not mentioned in the claims of the
patent application from which the priority right is originated, the
priority right shall also be accepted to be covering these factors
on condition that the patent application from which the priority
right is originated clearly specified these factors as a whole.
(5) The procedure and rules regarding the demand of the priority
right shall be determined by a regulation.
PART TWO Granting a Patent
Analysing the invention in terms of accordance with formal
conditions
ARTICLE 95 - (1) The application shall not be processed in case of
any of the factors specified in paragraph 3 of Article 90 being
missing.
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(2) In the application which is admitted to be processed, in the
case that at least one of the factors which are specified in
paragraph 1 of Article 90 being missing or the factors being
specified in a foreign language according to paragraph 2 of Article
90, the deficiencies are corrected or the Turkish translation shall
be submitted without the need to notify within two months as of the
application date. Failing that shall result in considering the
application to be withdrawn.
(3) The Office analyses the application which completes the
requirements specified in paragraph 1 or which has met the
requirements in accordance with paragraph 2 in terms of accordance
with other formal conditions which are determined based on paragraph
4 and 5 and the regulation.
(4) In case of the realization of the inconsistency of the
application with formal conditions, the applicant shall be asked to
correct the deficiencies within two months as of the application
date. In the case of failing to fill the deficiencies within this
period, the application shall be refused.
(5) In case of the realization of the consistency of the application
with formal conditions, a search report shall be prepared pursuant
to the provision of Article 96.
Search request, preparation of search report and publication
ARTICLE 96 - (1) The applicant requests a search on the condition of
paying the fee together with the application or without the need to
notify within twelve months as of the application date. Failing that
shall result in considering the application to be withdrawn.
(2) In the case of the applicant requesting for a search in
accordance with the provision of paragraph 5, if it is realized that
the application is consistent with formal conditions or the
deficiencies are corrected within required period, the search report
shall be prepared, the applicant shall be notified and it shall be
published on the Bulletin. The search report shall be published
separately in the case that the application is published in
accordance with Article 97; if not, it shall be published on the
Bulletin together with the application.
(3) If it is concluded that the subject of the application is
included in the extent of paragraphs 2 and 3 of Article 82; or if
the description or all the claims not being clear enough prevents
the report being prepared, the search report shall not be prepared.
The applicant shall be asked to submit his objections regarding this
issue or his changes in the application within three months as of
the notification date. The application shall be refused in case of
failing to submit the objections within this period; or the
objection or the changes made not being accepted by the Office. In
case the objection or the changes made, if any, are accepted, the
search report is prepared, the applicant shall be notified and it
shall be published on the Bulletin.
(4) The Council of Ministers shall be authorized to reduce by half
the twelve-month time period of search demand that is mentioned in
paragraph 1.
(5) Procedure and rules regarding search request and preparation of
the search report shall be determined by a regulation.
Publication of the application and its effects
ARTICLE 97 - (1) Upon expiration of eighteen-month time period as of
the date of the application or priority, if any, the application of
the patent or utility model shall be published on the Bulletin.
(2) The third parties, as of the date of the publication of the
patent application, can present their comments regarding the
patent-conformability of the invention that is the subject of the
patent. However, such parties cannot be a part of the process being
done by the Office at this phase.
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(3) If it is decided to grant the patent before the eighteen-month
time period mentioned in paragraph 1 is expired, the patent
application and the patent shall be published together.
(4) The protection that is provided to the patent according to the
provisions of this Code shall temporarily be entitled to the
applicant as of the date of the patent application being published
on the Bulletin.
(5) If a person who used the invention that is the subject of the
application without the patent applicant’s permission is informed of
the patent application and its extent, the protection specified in
paragraph 4 shall also be a matter before the publication of the
application.
(6) If the invention that is the subject of the patent application
is related to microorganisms, the protection shall start after the
microorganism becomes reachable.
(7) In case the application is withdrawn, is considered to be
withdrawn or rejected, the results which are specified in the
paragraphs above shall be considered as not occurred.
(8) Procedure and rules regarding the publication of the application
or presenting third parties’ opinion shall be determined by a
regulation.
Examination request, preparation of the examination report and
granting the patent
ARTICLE 98 - (1) The applicant shall request, paying the fee, the
examination to be done within three months as of the date of the
notification of the examination report. Otherwise the application
shall be considered as withdrawn.
(2) Upon the applicant’s request of examination, the Office analyses
the conformity of the application and the related invention with the
provisions of this Code.
(3) If non-conformity of the application and the related invention
with the provisions of this Code is determined, the applicant shall
be notified to make changes on condition that the applicant presents
his opinions and does not exceed the extent of the application; and
such notifications shall be repeated as long as it is deemed
appropriate. However, the notifications which shall be made in this
context cannot be repeated more than three times.
(4) The applicant shall be allotted a three-month time period as of
the date of the notification in order that they present his comments
regarding the notifications specified in paragraph 3; or they can
make changes. The application shall be withdrawn in case; comments
are not presented or changes are not made within this time period.
(5) In case that it is specified in the examination report that is
prepared following the examination that the application and the
related invention is in conformity with the provisions of this Code,
the patent shall be decided to be granted, the applicant shall be
declared to, and the patent shall be published on the Bulletin.
(6) In order to be able to grant the patent according to the
examination report, in case changes are needed to be made, the
changes shall be asked to be made within two months as of the date
of the notification. In case that the changes made are confirmed,
the patent shall be decided to be granted, the applicant shall be
declared to, and the patent shall be published on the Bulletin. In
case that the changes are not made or the changes made are not
confirmed by the Office, the application shall be considered to be
withdrawn; this decision shall be notified to the applicant; and it
shall be published on the Bulletin.
(7) After the publication regarding the granted patent; upon a
request and upon the payment for the preparation of certificate fee,
the patentee shall be delivered the prepared document.
(8) If it is specified in the examination report that the
application and the related invention is in unconformity with the
provisions of this Code, the application shall be refused by the
Office, the applicant shall be declared to, and it shall be
published on the Bulletin.
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(9) A granted patent may not be interpreted as the Office guarantees
its validity and utility; and does not originate a responsibility
for the Office.
(10) Procedure and rules regarding examination request, preparation
of the examination report and granting the patent shall be
determined by a regulation.
PART THREE
Objection and Objection Evaluation
Objection and Objection Evaluation
ARTICLE 99- (1) Third Parties can object, paying the fee, to the
subject patent within six months as of the date of the decision of
granting the patent is published on the Bulletin with the
allegations specified below:
a) the subject of patent does not comply with patent conformity
conditions of patentability according to Articles 82 and 83;
b) the invention is not explained sufficiently according to the
paragraphs 1 to 3 of Article 92;
c) the subject of patent exceeded the extent of the first version of
the application; or it exceeded the extent of the previous version
of the application, in case it is based on a divisional application
that is filed according to Article 91 or based on an application
that is filed according to subparagraph (b) of paragraph 3 of
Article 110.
(2) The objection shall be considered as not made, in case the fee
regarding the objection within the time period that is specified in
paragraph 1; or the objection is not made in compliance with the
conditions specified by the regulation.
(3) In case, no objections are made; or an objection is considered
as not made, the decision regarding granting the patent shall be
finalized and the final decision shall be published on the Bulletin.
(4) The Office shall notify the objection to the patentee. The
patentee shall present his comment within three months as of the
date of this notification or make changes on the patent. The
objection is evaluated by the Board considering the patentee’s
comment and the requests for changes in the patent.
(5) The Board, if has the opinion that the patent or the changed
version complies with this Code, shall decide for the patent or the
changed version, if any, to maintain the position; if has the
opinion that it does not comply, the Board shall make a decision of
nullity for the patent; and in this case, consequences of nullity
which are specified in Article 139 will appear. The decision of
nullity shall be published on the Bulletin.
(6) The Board, if has the opinion that the patent or the changed
version complies partially with this Code, shall decide for the
patent or the changed version, to maintain the position by this part
and shall invite the patentee to make required changes within two
months as of the date of notification. In case the subject changes
are failed to be made or the changes made are refused, the Board
shall make a decision of nullity for the patent; and in this case,
consequences of nullity which are specified in Article 139 shall
appear. The decision of nullity shall be published on the Bulletin.
(7) The final decision made in consequence of the objection shall be
published on the Bulletin. In case it is decided for the patent to
continue with the amended version, the amended version of the patent
shall be published on the Bulletin.
(8) Procedure and rules regarding the objection and objection
evaluation shall be determined by a regulation.
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Objection to the decisions of the Office
ARTICLE 100 - (1) Without prejudice to the provisions of Article 99,
the patent applicant, the patentee or related third parties shall
object to the decisions of the Office within two months as of the
date of the notification of the decision. The objection made within
the context of this article shall be evaluated by the Board.
PART FOUR
Duration of Protection and Annual Fees
Duration of protection and annual fees
ARTICLE 101 - (1) Starting with the application date, the time
period of the patent protection is twenty years; the time period of
the protection of the utility model is ten years. These time periods
shall not be extended.
(2) The annual fees that are needed for the protection of the patent
application or the patent are paid during the patent protection, as
of the date of the application, at the end of the second year and in
due time every year. The due date shall be the month and day
corresponding to the application date.
(3) The annual fees can paid together with surcharges within six
months following the due date, in case it cannot be paid in due time
specified in paragraph 2.
(4) In case the annual fees are not be paid in due time as specified
in paragraph 3, the patent right shall expire as of the due date of
this fee; a notification will be made regarding expiration of the
patent right; and this situation shall be published on the Bulletin.
In case the compensatory fee is paid within two months as of the
date of notification regarding expiration of the patent right, the
patent right will be re-validated as of the date of the payment; and
it shall be published on the Bulletin. The notification regarding
expiration of the patent right shall be made, at the latest, until
the end of one-year time period that starts as of the date of due
date in which the patent right expires.
(5) The re-validation of the patent cannot interfere with third
parties’ acquired rights who deserve such rights in consequence of
expiration of the patent right. Third parties’ rights and their
extent shall be determined by the court.
SECTION THREE Transactions Regarding Patent Process
Patent application and patent analysis by third parties
ARTICLE 102- (1) Not yet published patent applications cannot be
analysed by third parties without a written permission by the
applicant.
(2) Third parties who can prove that the patentee intends to use the
rights provided by the application against them, can analyse the not
yet published patent application without a written permission by the
applicant.
(3) In case an application that is divided according to the Article
91 or a new patent application that is made according to
subparagraph (b) of paragraph 3 of Article 110 are published, the
previous application can be analysed by third parties before the
application is published and without the applicant’s permission.
(4) Procedure and rules regarding the patent application and
analysis of the patent by third parties shall be determined by a
regulation.
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Amendments and corrections that will be made in the patent
application and the patent
ARTICLE 103- (1) The patent application can be amnded by the
applicant on condition of not exceeding the extentof the first
version of the application during the transaction by the Office.
(2) If the patent is objected to, the patent can be changed by the
patentee on condition of not exceeding the extent of the protection
provided by the patent until a final decision regarding the
objection is made by the Office.
(3) Spelling mistakes and obvious mistakes in fact which may occur
in the patent application or patent documents shall be corrected
upon request.
(4) Procedure and rules regarding amendments and corrections that
will be made in the patent application and the patent shall be
determined by a regulation.
Transforming patent application into utility model application and
transforming utility model application into patent application
ARTICLE 104- (1) The patent applicant can demand their pending
application to be transformed into a utility model application. The
Office, in case such a demand is made, notifies the applicant that
he is required to submit the required documents within a month as of
the date of the notification and request a search paying the search
fee. In case of unfulfillment of necessary conditions within this
time period, the transformation request will be considered as not
made and the application will continue to be processed as a patent
application. In case of fulfillment of necessary conditions within
this time period, the provisions of paragraph 6 and 11 of Article
143 will apply to the application.
(2) The utility model applicant can request their utility model
application to be transformed into a patent application until the
end of the three-month time period following the date of the
notification of search report at the latest. The Office, in case
such a demand is made, notifies the applicant that they are required
to submit the required documents within a month as of the date of
the notification and request a search paying the search fee. In case
of unfulfillment of necessary conditions within this time period,
the transformation request will be considered as not made and the
application shall continue to be processed as a utility model
application. In case of fulfillment of necessary conditions within
this time period, the provisions of this Code regarding granting a
patent shall apply.
(3) In case the application shall be published, the decision of the
Office on confirmation of transformation of the patent application
into utility model application or the utility model application into
patent application shall be published on the Bulletin.
(4) In case the patent application shall be transformed into a
utility model application or the utility model application shall be
transformed into a patent application, the same priority right shall
also be recognized for the transformed application, if a priority
right has been requested for the transformed application.
(5) Retransformation requests made for patent applications that have
been transformed into utility model applications or for utility
model applications that have been transformed into patent
applications shall not be admitted to process.
(6) The procedure and rules regarding transformation of a patent
application into a utility model application or a utility model
application into a patent application shall be determined by a
regulation.
Withdrawing a patent application
ARTICLE 105- (1) A patent application may always be withdrawn by the
applicant before the date of declaration of a patent grant.
Withdrawal of a published patent application
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shall be published on the Bulletin. After the withdrawal of a patent
application is published on the Bulletin, this request shall not be
backed down.
(2) The application shall not be withdrawn without the consent of
third parties whose originated rights from the patent application
are in the registry.
(3) In case of withdrawal, consideration as withdrawal or denial of
a not yet published patent application, a new patent application may
be filed for the same invention subject.
(4) If a published application is withdrawn, a reapplication cannot
be filed for the same invention subject.
Registration and its provisions
ARTICLE 106- (1) The patent application and the patent shall be
registered in the registry. Registry shall be public. A certificated
copy of the patent shall be given on condition that it is requested
and the fee is paid. The procedure and rules regarding registration,
publication and grant process shall be determined by a regulation.
(2) Without prejudice to the provisions of paragraph 1 of Article
111, patent application or alienations and licences regarding patent
applications and patents; and voluntary or imperative disposals that
effect the patent application or patents, generate provisions
against bonafide third persons as of the date of registry.
(3) The rights provided by a patent application or a patent shall
not be put forward against bonafide third parties, unless they are
registered in due form.
(4) The party who puts the rights provided by a patent application
or a patent forward has an obligation to inform the number of the
patent application or the patent to the parties against whom they
put their rights forward.
(5) In case that statements which leave the impression of existence
of the protection provided by a patent application or a patent on a
product, its labels and packages; all kinds of announcements,
advertisements or printed matters, are found, the statement maker
has an obligation of specifying the number of patent application or
patent.
Continuation of the processes and re-recognition of rights
ARTICLE 107- (1) The applicant, in case he does not comply with the
time period regarding the processes of patent application, can
request, with a paid fee, the processes to be continuing within two
months as of the date of the notification of outcome of
noncompliance with time period. Failing that shall lead to denial of
the request. In case the request is approved, the legal consequences
of noncompliance with time period shall be considered as not
occurred.
(2) Even though, due diligence required by conditions is exercised
by a patent applicant or the patentee during the processes of the
patent application or the patent; in case noncompliance with a time
period to which it is required, causes the patent application a
denial, consideration as withdrawn; nullification according to
Article 99; or loss of any other rights, re-recognition of rights
can be requested. This request shall be made with a paid fee within
two months as of time of elimination of the conditions causing
noncompliance with the time period, on condition that the time
period with which it was failed to comply is not exceeded more than
one year. Failing that will lead to denial of the request. In case
the request is approved, the legal consequences of noncompliance
with time period will be considered as not occurred.
(3) In case of re-recognition of the rights, the situation shall be
published on the Bulletin. During the time period starting from loss
of rights until publication of the decision on re-recognition of
rights; the parties who use the invention subject of the patent
well- meaningly in Turkey or who take firm actions in using, can
continue using the invention free of charge.
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(4) In terms of the time period given for restoration fee specified
in paragraph 4 of Article 101 to be paid and the time period
specified in paragraph 1 of Article 93; and the time periods
regarding processes determined by a regulation; continuation of the
processes cannot be requested according to subsection 1.
(5) The provisions of this article shall not be applied to in terms
of the time periods regarding continuation of the processes or
re-recognition of rights.
(6) The procedure and rules regarding continuation of processes and
re-recognition of rights shall be determined by a regulation.
Incorrect processes
ARTICLE 108- (1) Not including the grounds for nullity specified in
Articles 138 and 144; in case of an incorrect continuation of
processes of the application or the certificate, even though the
patent or the utility model application or certificate does not meet
the conditions specified in this Code; and in case of this situation
being detected upon an objection or as a matter of course; the
incorrect transaction and the following transactions shall be
cancelled and the process shall restart from the phase at which the
mistake was made.
SECTION FOUR
Right Ownership and Disseizor
Right for patent claim
ARTICLE 109- (1) Patent claim right belongs to the inventor or their
successor; transfer of such right shall be possible.
(2) If the invention is made together by more than one individual,
the patent claim right belongs to all these unless otherwise is
decided.
(3) If the one invention is made by more than one individual
independent of each other, the patent claim right belongs the
earlier application, on condition of the earlier dated application
being published.
(4) The first applicant of a patent shall be the right owner of
patent demand until proven otherwise.
Processes regarding right ownership in patent applications
ARTICLE 110- (1) It cannot be suggested by the Office that a patent
claim right does not belong to the applicant. Until proven
otherwise, it shall be considered that the applicant is the right
owner of the patent claim.
(2) During the process of granting a patent, the individual
alleging, according to paragraph 1 of Article 109, that they are the
true right owner of patent claim shall bring an action against the
applicant and shall report this action to the Office. The processes
of granting a patent can be suspended by the court until the date of
the finalization of the decision regarding the legal proceeding.
(3) In case that the decision that is to be made in the result of
the proceeding regarding right ownership is finalized in the
plaintiff’s favour; the plaintiff right owner, within three months
as of the date of finalization of the decision that is for the
still-valid application, can;
a) demand from the Office to consider and perform the patent
application as theirs;
b) make a new application for the same invention benefitting from
the priority right, if any;
c) demand from the Office to deny the application.
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(4) The application made according to the subparagraph (b) of
paragraph 3 begins to be processed as of the date of the first
application; and in this case, the first application shall be
considered as null and void.
(5) The application that is subject matter shall be considered as
withdrawn, if the plaintiff right owner does not make any demands
within three months as of the date of finalization of the decision.
(6) And the individual alleging that they are partially entitled
putting forward that they performed the invention together with
applicant, can press charges claiming joint right ownership.
(7) The provision of paragraph 3 also applies to divided application
made according to Article 91.
(8) The application cannot be withdrawn without the plaintiff’s
consent until finalization of the decision that is to be made in the
result of the legal proceeding that is brought according to
paragraph 2 to determine the patent claim right.
(9) If the application is granted a patent during an ongoing legal
proceeding, the proceeding ıf application disseize becomes a
proceeding of patent disseize.
Patent disseizor and consequences of termination of disseizor
ARTICLE 111- (1) If the patent is granted to an individual other
than true right owner, the individual with the allegation, according
to provision of paragraph 1 of Article 109, to be true right owner
can demand from the court to grant the patent to themselves,
reserving other rights and demands provided by the patent.
(2) In case of a demand of partial right on the patent, recognition
of right ownership can be demanded according to paragraph 1 and
based on the principals of joint ownership.
(3) The rights specified in paragraph 1 and 2 can be performed
within two years as of the date of the publication regarding the
patent grant; if it is in malicious intent, can be performed until
the end of the patent protection.
(4) The legal proceeding instituted according to this article and
the provision made and finalized at the end of this case are
registered and published on the Bulletin; and generate provisions
against bona fide third persons as of the date of registry.
(5) In case of change of right ownership of the patent according to
this article; the third parties’ license rights regarding the patent
and other recognized rights expire, with the registry of this
change.
(6) Before the date of true patentee according to paragraph 5 being
registered; in case the individual who is later realized not to be
true patentee or the individual who made a license agreement, before
the legal proceeding, with them regarding patent subject matter has
already begun to use the invention; or has already begun to take
preparatory actions for use; can demand from true patentee or
patentees to provide him with a non-monopolized license.
(7) The prescribed time period to make a claim shall be two months
for the individual who is already known, on the registry, to be true
patentee and four months for the patent receiver. These time periods
start from the date in which true patentee is reported as registered
by the Office to the authorities.
(8) The license to be issued according to paragraph 6 shall be
issued by reasonable time periods and conditions. The provisions
regarding issuing the compulsory license are applied comparingly in
prescribing these time periods and conditions.
(9) While the patentee or license receiver begins to use the patent;
or while making serious preparation for use, the provisions of
paragraph 6 and 7 shall not be applied if they are malicious.
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Partnership relation and indivisibility of a patent
ARTICLE 112- (1) If a patent application or a patent belongs to more
than one individual, the partnership of the rights is determined
according to the agreement between the parties; if such an agreement
does not exist, it shall be determined according to the provisions
regarding joint ownership in the Law number 4721. Every right
holder, independently, can perform the processes below on their
behalf.
a) Can do performances freely on their share.
b) Can use the invention after announcing other right owners.
c) Can take necessary measures for protection of the patent
application or the patent. ç) In case the patent application made
together or any of the rights provided by the
patent obtained are violated; can bring a legal proceeding against
third parties. In order to add the other right holders to the legal
proceeding, the position will be reported to them by the plaintiff
party within one-month as of the date of the legal proceeding is
instituted.
(2) A consensus of right holders is a must in order to issue a
license for third parties for use of the invention. However, in case
a consensus is not able to be provided; the court can give this
authority to one or a few of the right holders on an equitable
basis, considering the existing conditions.
(3) Dividing a patent application or a patent to transfer or
generate rights on them shall not be possible, even though right
ownership of more than one individual exist on them.
SECTION FIVE Employees’ Invention
In-service invention and independent invention
ARTICLE 113- (1) An invention based on an employee’s work that he is
required to perform in a facility or a public agency; or an
invention considerably based on the experience and work in a
facility or a public agency and made within the context of work
relations shall be an in-service invention.
(2) An invention other than the in-service invention specified in
paragraph 1 shall be considered as independent invention.
(3) Provisions shall be applied, in terms of employees, to students
and interns who work unpaid with no time limitation.
(4) The provisions in effect for worker’s invention shall be applied
to the invention made by workers of state institutions and
organizations, without prejudice to other legal regulations and the
provisions of agreements that are made between parties.
(5) The amount that is to be paid to the workers of state
institutions and organizations cannot be less than a third of the
earnings made from the invention. However, the amount that is to be
paid in case the state institutions and organizations use the
invention, for one time only, cannot be more than ten times of the
salary that is paid to the worker in terms of the month in which the
amount is to be paid.
(6) The provisions specified in the Law number 6550 shall be applied
to the inventions generated in research infrastructures that
obtained qualification under the coverage of Law on the Promotion of
Research Infrastructure dated 07.03.2014 and numbered 6550. In cases
of nonexistence of provision in Law number 6550, the provision of
Article 121 of this Code is applied comparingly.
Obligation of notification for in-service invention
ARTICLE 114- (1) Workers, when made an in-service invention, are
obliged to report the invention in written to the employer without
delay. If the invention is made by more
53
than one worker, the notification can be made jointly. The employer
notifies the date of receiving to the reporting individual or
individuals in written and without delay.
(2) The worker shall be obliged to explain the technical problem,
the solution and how they made the in-service invention on the
report. In terms of explaining the invention in a better way, the
worker also provides the employer with pictures, if any.
(3) The worker also explains the experiences and works that they
relied on; other workers’ contributions, if any, and the form of
such contributions; the instructions they received regarding their
jobs and their contribution besides mentioned contributions.
(4) The employer informs the worker in what aspects the report needs
to be reorganized within two months as of the date of receiving the
report. In case no requests are made, the notification specified in
paragraph 2 will be considered valid.
(5) The employer shall be obliged to provide the worker with the
needed help in order to make the notification as specified in this
Code.
(6) The worker shall be obliged to keep the in- service invention
private unless it acquires the qualification of independent
invention.
Employer’s right on the invention and the amount when claiming
rights
ARTICLE 115- (1) The employer can demand full or partial rights on
the in-service invention. The employer shall be obliged to notify
this demand to the worker in written within four months as of the
date of receiving the worker’s notification. In case that no
notification to the worker is made within notification time period,
or a notification is made not to demand any rights, the in-service
invention will acquire qualification of independent invention.
(2) In case that the employer demands full rights on the in-service
invention, all rights on the invention shall be transferred to the
employer as the worker receives the notification.
(3) In case that the employer demands partial rights on the
in-service invention, the in- service invention shall acquire
qualification of independent invention. However, in this case, the
employer can use the invention based on the partial rights. If this
use considerably complicates the worker’s evaluation of his work,
the worker can offer the employee to either undertake the invention
in full rights or renounce their rights of use based on partial
rights. If the employer does not respond to the worker’s this offer
within two months as of the notification date, the employer’s rights
of using the invention based on partial rights shall expire.
(4) The worker’s commitments on the invention before the employer
claims rights regarding the in-service invention, shall be deemed
invalid to the extent the commitments violate the employer’s rights.
(5) In case the employer does not claim full rights; the employer
shall be obliged to keep the information regarding the invention
private which is informed to him for as long as the worker’s
deserved interests continue.
(6) In case the employer claims full rights on the in-service
invention, the worker can demand from the employer a reasonable
amount to be paid to him. If the employer claims partial rights on
the in-service invention; in case the employer uses the invention,
worker’s demand of a reasonable amount to be paid to him, generates.
(7) Economical evaluability of the in-service invention, the
worker’s job in the business, the contribution of the business to
the invention shall be considered in calculating the amount of the
rate.
(8) The employer cannot avoid paying the rate alleging that the
invention is not worth protection after they make a claim regarding
the in-service invention. However, in case that the legal proceeding
that is instituted to confirm nonpatentability is approved by the
court, the worker cannot demand a rate to be paid to him.
54
(9) The method of payment following the employer’s claim of partial
or full rights on the in-service invention shall be determined
according to the provisions of an agreement or a similar legal deal
signed by the employer and the worker.
(10) If the in-service invention is made by more than one worker,
the payment and the method shall be determined according to the
paragraph 9 separately for every one of them.
(11) The rate tariff regarding worker inventions and the procedure
by arbitration in case of disagreement shall be determined by a
regulation.
(12) The workers can make commitments on the in-service invention
that is became an independent invention as they see appropriate
without an obligation of complying with the provisions of Article
119.
Patent application for an in-service invention
ARTICLE 116- (1) If the employer has claimed full rights on the
in-service invention that is notified to them, the employer shall be
obliged to file the first application to the Office to be granted a
patent. However, the employer can avoid applying if it is required
by the interests of the business. Without prejudice to the provision
of the paragraph 2; in case it is avoided to file an application,
possible economical losses against the worker caused by a fail of
obtaining a patent are considered in determining the rate which is
to be paid by the employer for the invention.
(2) The employer’s obligation of first application to the Office
vanishes in at least one of the cases mentioned below;
a) the in-service invention acquiring qualifications of independent
invention;
b) the worker’s consent not to file a patent application for their
invention;
c) protecting the company secrets requiring not to apply;
(3) The worker has a right to apply personally if the in-service
invention acquired the
independent invention qualifications.
(4) If the employer does not file an application on the in-service
invention on which
they claimed full rights; or does not apply within the time period
that is to be determined by the worker, the invention acquires the
qualifications of an independent invention.
(5) If the employer has claimed full rights on the in-service
invention, they can file an application for the subject invention to
be protected in a foreign country.
(6) Upon the worker’s request; the employer shall be obliged to give
their rights on the invention for the foreign countries in which
they do not wish to obtain a patent; and to provide the worker with
conditions for making an application to claim a patent in such
countries. Releasing the invention shall be made in a reasonable
time period in terms of keeping within time period of priority
right.
(7) The employer, releasing the invention in order to make possible
for the worker to obtain a patent in foreign countries, has a right
to reserve a non-monopolized right of tenancy to be able to use the
invention in such countries for a proper fee; and has a right to
claim a protection for their interests generated from this reserved
right.
Mandatory facts of provisions regarding workers’ inventions and the
condition of equitability
ARTICLE 117- (1) Regulations and applications by the employer
against the workers in the manner of being contrary to the
provisions regarding workers’ inventions of this Book shall not be
allowed. The parties’ contract authorization regarding workers’
inventions begins, for in-service inventions, after the patent
application; for independent inventions, after the worker’s
obligation of notification to the employer.
(2) The agreements made between employers and workers regarding
in-service inventions and independent inventions shall not be
considered valid, if not considerably
55
equitable; even though they are not against mandatory facts of
provisions regarding workers’ inventions. The same rule applies to
the determined rates.
(3) Objections regarding the agreement and the determined rates
being not equitable, can be made in written within at the latest of
six months as of the end of the business contract.
The parties’ rights and obligations regarding a patent application
ARTICLE 118- (1) The worker shall be obliged to provide necessary
information and help in order to be able to obtain a patent. And the
employer shall be obliged to provide the worker with the copies of
the application made to obtain a patent and supplemental documents;
and to inform the progress during the process of the application,
upon the worker’s request.
(2) The employer shall be obliged, before the payment of the rate
which is demanded by the worker due to their in-service invention,
to notify the worker of the situation if they renounce the patent
application or patent rights. Upon the worker’s request, the
employer must transfer, at the worker’s own cost, the patent rights
or documents required to obtain a patent to the worker. If the
worker does not respond to the notification that is made regarding
this matter within three months as of the date of notification, the
employer can renounce the patent application and the rights provided
by the patent.
(3) The employer can reserve, for a decent fee, a non-monopolized
right to benefit from the in-service invention together with the
notification specified in paragraph 2.
(4) Rights and obligations generated from worker’s invention shall
not be effected by the work contract being expired.
Independent invention, obligation of notification and obligation to
offer
ARTICLE 119- (1) In case a worker makes an independent invention
while in a business relation; the worker shall be obliged to notify
the employer of the situation without a delay. In the notification;
the employer shall be provided with informational conditions in
order to reach the conclusion of whether the invention is fit to be
considered as a real independent invention or not; by means of
providing information about the invention and the form of invention,
if needed.
(2) The employer can make an objection regarding the independence of
the invention with a written notification within three months as of
the date of the notification made to themselves.
(3) The worker shall not be obliged to notify if it is clear that
the independent invention is not deemed to be within the employer’s
field of activity.
(4) If the independent invention is considered within the employer’s
field of activity; or if the business is preparing to take
considerable actions to do activities in the field which the subject
invention is within; the worker, before beginning to evaluate their
independent invention from different angles while continuing the
work relation; shall be obliged to make an offer the employer in
order to provide them with conditions to benefit from their
invention under proper circumstances without releasing full rights.
If the employer does not respond within three months as of the date
of receiving the notification, they will lose their preferential
right regarding this matter. If the employer confirms the offer they
received but do not agree with prescribed conditions, then, the
conditions shall be determined by the court upon the parties’
request.
Worker’s right of pre-emption
ARTICLE 120- (1) In case that the employer bankrupts and the
bankruptcy administration desires to transfer this invention
separately from the business; the worker has a
56
right of pre-emption on the invention that he made and on which the
employer claimed full rights.
(2) The balance generated from the worker’s invention shall be of
preferential balances. The bankruptcy administration apportions this
type of more than one balance among the claimants at the rate of
their balance receivables. The worker may claim his invention to be
an independent invention in return for his balance receivables.
Inventions made in Higher Education Institutions
ARTICLE 121- (1) The provisions regarding workers’ invention shall
be applied to the inventions made in consequences of scientific
studies and researches conducted in higher education institutions
which are defined in subparagraph (c) of paragraph 1 of Article 3 of
the Law numbered 2547; and in higher education institutions
connected to Ministry of National Defence and Ministry of Interior,
without the prejudice to the provisions of special law and the
regulations within the context of this article.
(2) When an invention is made in consequences of scientific studies
and researches conducted in higher education institutions; the
inventor shall be obliged to notify their invention in written to
the higher education institution without a delay. If a patent
application is filed, a notification shall be made to the higher
education institution regarding the patent application.
(3) In case the higher education institution claims rights on the
invention, they shall be obliged to make a patent application.
Otherwise, the invention acquires the qualifications of an
independent invention.
(4) In contrast to the higher education institution’s claim of
rights; the inventor can make an objection alleging that the
invention is an independent invention. The objection is concluded by
the higher education institution also specifying the written
grounds. Otherwise, the invention acquires the qualifications of an
independent invention.
(5) The articles 115, 116, 118 and paragraph 4 of article 119 shall
not be applied to the inventions made in higher education
institution.
(6) If the higher education institution wishes to renounce the
application or the patent right; or the invention acquires the
qualifications of an independent invention after a patent
application; the higher education institution, first, offers the
inventor to take over the application or the patent right. In case
the inventor considers the offer, the rights shall be transferred.
In this case, the higher education institution delivers the required
documents to obtain and protect a patent to the inventor. In case of
the higher education institution transferring the application or
patent right to the inventor; a non-monopolized tenancy can be
reserved for a decent fee. In case the inventor refuses the offer,
the patent application or the power of disposition on the patent
will belong to the higher education institution.
(7) If the higher education institution causes any loss of
application process or patent right inflicting from a fault of their
own, they shall be obliged to cover the inventor’s sustained loss.
(8) Sharing form of the revenue earned from the invention between
the higher education institution and the inventor shall be
determined by means of at least one third of the revenue to be paid
to the inventor. The higher education institution’s share of the
revenue will be registered in the budget of the higher education
institution as the equity revenue; and will be used for covering the
needs, particularly scientific researches of the higher education
institution.
(9) In determining the right ownership on the inventions generated
in the consequences of the studies performed within the context of a
specific agreement between the instructors defined in the
subparagraph (b) of paragraph 1 of Article 3 of the Law number 2547
along with interns and students; and other public institutes or
private organizations; the
57
provisions of the agreement will be based on without prejudice to
the provisions of other laws.
(10) Procedure and rules regarding implementation of this article
shall be determined by a regulation.
Inventions generated in projects supported by State
ARTICLE 122- (1) It shall be obligatory to notify the supporting
institution the inventions generated in the projects supported by
State institutions and organizations in compliance with the
regulation. The party who benefitted from the project support within
one year as of the date of the notification notifies the public
institution in written regarding their decision on whether they will
demand a right ownership on the subject of the invention. If the
beneficiary party of the project support does not claim right
ownership; or they do not make their decision on right ownership in
written; the supporting State institution or organization may take
over the right ownership of the invention. The beneficiary party of
the project support cannot make statements in the manner of
effecting the invention in obtaining a patent or a utility model
status until the process regarding right ownership is over.
(2) The beneficiary party of the project support, in case of
claiming a right ownership on the invention, shall be obliged to
file a patent application for the invention. The supporting state
institution or organization shall be specified in the application.
(3) The state institution or organization has the right to demand
from the beneficiary party of the project support to regularly
update them regarding the use of the invention that is the subject
of the patent or regarding the efforts performed to use. These
commercial and financial information that are requested by the state
institution or organization shall be kept private. The form of
sharing the revenue earned from the use of the invention shall be
determined by an agreement.
(4) In case that the beneficiary party of the project support claims
right ownership on the invention; the state institution or
organization obtains a license at no charge regarding the use of the
invention for their own needs. Renouncing this right is possible on
the condition of being specified in the agreement. In the cases
mentioned below; the state institution or organization is in the
possession of the right to claim to use the invention that is the
subject of the patent; or to make a claim for third parties to be
granted a license in reasonable conditions to use the invention.
In case that;
a) According to the provision of Article 130, the beneficiary party
of the project support does not use the invention that is the
subject of the patent or does not attempt to use.
b) The product that is the subject of the patent produced by the
beneficiary party of the project support or the licensee is not able
to cover the needs arising from the reasons of public health or
national security.
c) The product that is the subject of the patent produced by the
beneficiary party of the project support or the licensee is not able
to cover the needs of the state institution or organization.
(5) The license practice that is within the context of paragraph 4
does not affect the practice of the provisions related to compulsory
license.
(6) This article’s provisions shall not be applied to the R&D or
design centers which are established within the scope of the Law on
the encouragement of Research, Development and Design Activities
dated 28/2/2008 and numbered 5746 or the technology development
areas which are established within the scope of the Law on
Technology development Areas dated 26/6/2001 and numbered 4691, the
works which are not carried out with the support of state
institutions and organizations or the inventions which emerge from
state supports that are not project based.
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SECTION SIX Supplementary and Confidential Patent
Supplementary patent
ARTICLE 123- (1) The patent applicant, in order to protect the
inventions which are perfects or develops the invention that is the
subject of the patent; and which are in coherence with the subject
of the main patent within the context of Article 91; can make a
supplemental patent application in addition to the main patent
application.
(2) The supplemental patent application can be made until the
publication of the decision on granting the main patent application.
The application date of the supplemental patent application is the
date in which the supplemental patent application is submitted to
the Office according to Article 90.
(3) The search report of the supplemental patent application shall
be prepared together with the search report of the main patent
application or later. The main patent application shall not be
considered as the state of the art in evaluation of the inventive
step specified in paragraph 4 of Article 83 for the supplemental
patent application.
(4) A patent cannot be granted for the supplemental patent
application before the decision on granting a patent for the main
patent application.
(5) The time period of the supplemental patent application begins as
of the date of the supplemental patent application and is valid
until the end of the time period of the main patent application.
(6) Annual fees shall not be paid for the supplemental patent
application and the supplemental patent.
(7) The supplemental patent application can always be converted into
an independent patent application upon the applicant’s request
during the application process. In case that it is detected by the
Office that the supplemental patent application does not display any
required connections with the main patent application; the
supplemental patent application shall be converted into a main
patent application within three months as of the date of the
notification.
(8) In case that the main patent is annulled; or the main patentee
gives up their patent right; or it is invalidated due to unpaid
annual fees; the supplemental patent shall be converted into a main
patent.
(9) The decision on nullity of the patent does not mandatorily lead
to nullity of the supplemental patent. However, in case no
application is made to convert supplemental patents into independent
patents within three months as of the notification of the nullity
decision that is made according to Article 99; nullity of the patent
will cause supplemental patents nullity.
(10) In case that the main patent is withdrawn; considered as
withdrawn; rejected; or deemed invalid due to unpaid annual fees;
the supplemental patent application shall be converted into an
independent patent application.
(11) If more than one supplemental patent applications are made for
the main patent application, the first supplemental patent
application or the supplemental patent can be converted into an
independent patent or an independent patent application according to
paragraph 7, 8 and 9. Other supplemental patent application will be
deemed the supplemental of the converted independent patent or
application.
(12) In case that the supplemental patent application or the
supplemental patent is converted into an independent patent
application or an independent patent; shall be subject to annual
fees as of the date of conversion and its protection time period is
the time period specified in paragraph 5.
(13) Except as otherwise provided and in case the supplemental
patent is not contrary to the nature of the supplemental patent; the
provisions of this Code regarding the patent shall also be applied
to the supplemental patent.
59
(14) A supplemental application cannot be filed for a utility model.
Confidential Patent
ARTICLE 124- (1) If the Office is of the opinion that the invention
that is the subject of the application matters in terms of national
security; sends a copy of the application to Ministry of National
Defense in order to receive their opinion and notifies the applicant
of the situation.
(2) If Ministry of National Defense makes a decision on conducting
the application processes in secret; notifies the Office of their
decisions within three months as of the date of the notification. In
case that a decision of confidentiality is not made or the Office is
not notified in specified time period; the Office starts the
processes regarding the application.
(3) In case that the patent application is subject to
confidentiality; the Office notifies the applicant of the situation
and registers the application as a classified patent application
without any other processes related to the application.
(4) The patent applicant shall not be allowed to declare the
invention that is the subject of a confidential patent application
to unauthorized parties.
(5) Upon the patent applicant’s request; Ministry of National
Defense may allow the invention that is the subject of the patent
application to be used partially or completely.
(6) The patent applicant can claim compensation from the government
for the time in which the patent application remained classified. If
an agreement on a compensation allowance is not reached; the
allowance shall be determined by the court. The compensation shall
be calculated considering the significance of the invention; and the
amount of the expectant revenue which the patent applicant can earn
in case they are authorized to use freely.
(7) Annual fees shall not be paid to the Office for confidential
patent applications during the time in which they remained
classified.
(8) The Office, upon the request of Ministry of National Defense,
may declassify the patent application. A declassified patent
application shall be processed as a patent application as of the
date it is declassified.
(9) In case an invention made in Turkey matters in terms of national
security, no patent application shall be allowed to be made for
subject invention in another country. If a patent application filed
to the Office for an invention made in Turkey is subject to the
provisions of paragraph 1 and 8; no patent application shall be
allowed to be filed for subject invention in another country without
a permission by Ministry of National Defense.
(10) If the inventor’s domicile is in Turkey; until proven
otherwise, the invention shall be considered as made in Turkey.
Contractual License
SECTION SEVEN License
PART ONE Contractual License
ARTICLE 125- (1) A patent application or a patent may be subject to
a license contract.
(2) A license may be issued as exclusive license or non- exclusive
license. Unless otherwise agreed in the contract, the license is
non-exclusive. In non-exclusive license agreements; the licensor may
use the invention that is the subject of the patent himself, as well
60
as he may issue other licenses to third parties related to the same
invention. When the exclusive license is the subject, licensor can
not issue licenses to others; and he can not use the invention that
is the subject of the patent, unless clearly reserving his rights.
(3) Unless otherwise agreed in the contract; the licensees can not
transfer their license rights to third parties or can not issue
sub-licenses.
(4) Unless otherwise agreed in the contract; a contractual licensee
may make any disposals related to use of the invention that is the
subject of the patent in the course of patent protection. The
licensee shall be obliged to comply with the conditions specified in
the license contract. Otherwise, the patentee may use his rights
generated from the patent against the licensee.
Obligation to release information
ARTICLE 126- (1) Unless otherwise agreed in the contract; the
assignor of the patent application or the patent or the licensor
shall be obliged to release necessary technical information needed
for a regular use of the invention that is the subject of the
patent, to the assignee and the licensee.
(2) The assignee or the licensee shall be obliged to take due
precautions in order to prevent the classified information released
to them being revealed.
Obligation arising from the transfer of rights and licensing
ARTICLE 127- (1) In case that; it is later understood that the
transferor of the rights provided by the patent application or the
patent or the licensor is not authorized to perform such
transactions; such person becomes answerable to those concerned due
to the situation.
(2) In the cases that, the patent application is withdrawn; or the
application is rejected; or the nullity of the patent right is
adjudged by the court; if the parties, in point of the right
transferor and licensor, failed to prescribe in the contract a more
comprehensive responsibility, the provisions of Article 139 shall
apply.
(3) In case that the transferor or the licensor act maliciously;
such parties shall always be responsible for their actions. If the
transferor or the licensor had not informed the other side of
reports or decisions in Turkish or a foreign language related to
preservability of the patent application or the invention that is
the subject of the patent about which commitments are made; or what
they know about such matters; or had not mentioned in the contract
the documents which include statements related all these; the
existence of malicious intentions shall be acceptive.
(4) The time period to claim the compensation arising from the
provisions of this article begins in the finalization date of the
court decision on which the case of obligations is based.
License offer
ARTICLE 128- (1) The patent applicant or the patentee may announce
in writing to the Office that they will issue licenses to anyone
willing to use the invention that is the subject of the patent. This
offer shall be published on the Bulletin.
(2) If any registered exclusive licenses exist, the patent applicant
or the patentee cannot offer anyone licenses.
(3) The patent applicant or the patentee may always withdraw his
license offer. The offer withdrawal shall be published on the
Bulletin.
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Compulsory License
PART TWO Compulsory License
ARTICLE 129- (1) Compulsory license may be given in the presence of
at least one of the conditions specified below.
a) If the invention forming the subject of patent is not used
according to provisions of article 130.
b) If the dependence of patent issues mentioned in Article 131 comes
into question,
c) If the public interest mentioned in Article 132 comes into
question,
ç) In case that conditions specified in the protocol amending
Agreement on Trade-
Related Aspects of Intellectual Property Rights to which our
participation was deemed appropriate by Law dated 30/04/2013
numbered 6471 are provided, if exportation of pharmaceutical
products comes into question due to public health issues in other
countries.
d) If the breeder fails to develop a new plant variety without
infringing on a previous patent,
e) If patentee carries out activities distorting, hindering or
limiting the competition while patent is used.
(2) The compulsory license to be granted in the scope of (a), (b)
and (ç) subparagraphs of first paragraph shall be requested from
the court and (e) subparagraph of first paragraph shall be requested
from the Competition Authority. Except emergency cases and (e)
subparagraph of first paragraph in compulsory license demands made
in accordance with (ç) subparagraph of first paragraph, evidence
shall be added to request letter that individual or entity
requesting compulsory license fails to receive the contractual
license within a reasonable period of time although they demand it
under reasonable commercial terms from the patentee. Court shall
send a copy of the compulsory license request and a copy of attached
documents to patentee without delay. Patentee shall be given
required time one month from the date of the notification so that he
can submit his comments with evidences.
(3) The court shall notify patent holder’s opinions, if any, to
individual or entity requesting compulsory license and decide either
the rejection of request or granting of compulsory license within
one month. This time cannot be extended. If the patentee has not
objected to the demand for compulsory license, the court decides for
the compulsory license without delay.
(4) In the judgment given related to the compulsory license; the
scope, fee and duration of the license, guarantee supplied by the
licensee, start time for use and measures providing serious and
effective use of patent shall be specified.
(5) When legal remedies are applied against the court decision, if
the evidences submitted by patentee to stop the compulsory license
application are found sufficient by court, then use of the invention
shall be postponed until the finalization of the decision on the
license.
(6) If the patentee cannot use the patent right without infringing
on the right of breeder belonging to a previous plant variety, this
situation may be subject to compulsory licensing. In this case, the
provisions of Law numbered 5042 shall be applied.
(7) If a license is granted pursuant to subparagraph (d) of first
paragraph, then patent owner may demand the giving of the license to
himself to use the protected plant variety and if a license is
granted pursuant to sixth paragraph, then holder of breeder right
may demand mutually the giving of license to himself to use
protected plant variety under reasonable terms.
62
(8) For licenses specified in subparagraph (d) of first paragraph
and in the sixth paragraph, demandant may request the court to issue
a compulsory license by means of proving that;
a) it applies to patentee or holder of breeder right belonging to a
new plant variety to obtain a contractual license but cannot get any
results,
b) compared to protected plant variety or invention protected by the
patent, next invention or plant variety show a significant technical
advance that largely provides economic benefits.
(9) Without prejudice to the provisions of subparagraph (ç) of
first paragraph, compulsory license shall mainly be granted to
supply the domestic market.
Compulsory license in case of disuse
ARTICLE 130- (1) Patent owner or person authorized by patent owner
shall be obliged to use the invention protected by the patent. In
the assessment of use, market conditions and conditions happening
beyond control and will of patentee shall be taken into
consideration.
(2) Within three years after grant decision related to a patent is
published in the Bulletin or within four years after date of patent
application, whichever expires later, as from date of expiration of
that period the relevant person may request to be given a compulsory
license on the grounds that invention forming the subject of patent
wasn’t started to be used or serious and real initiatives haven’t
been made for use of patent or use of patent was not at level to
meet the needs of the national market on the date of license
request. This shall be applied to circumstances where take a break
in the use of the invention more than three years repeatedly without
justifiable reason.
Compulsory license in case of dependency of patent issues
ARTICLE 131- (1) If it is not possible to use the invention forming
the subject of patent without infringing of rights provided by the
previous patent, the dependency shall come into question between
patent issues. Therefore, owner of subsequent dated patent cannot
use the invention forming the subject of previous dated patent
without the permission of its owner.
(2) If there is a dependency between the patent issues, owner of
subsequent dated patent can request to be given a compulsory license
to use the invention forming the subject of patent provided that
invention in question produces a significant technical advancement
providing largely economic benefits. If owner of subsequent dated
patent is given a compulsory license, also owner of previous dated
patent may request to be granted a compulsory license to use the
invention forming the subject of subsequent dated patent.
(3) If one of the dependent patents become void and null or in case
of expiration of patent right, compulsory licensing decision also
shall be eliminated.
Compulsory license arising from the public interest
ARTICLE 132- (1) If use of the invention forming the subject of
patent, increase of its use, dissemination of it in general,
improvement of it for a beneficial use have a great importance by
the reason of public health or national security issues or if
non-use of the invention forming the subject of patent or its
insufficient usage in terms of either quality or quantity shall
cause serious damages in terms of the economic or technological
development of the country, it shall be decided by Council of
Ministers upon the proposal of the relevant ministry that;
a) A compulsory license for the public interest is given,
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b) There is public interest if invention is made conditionally the
subject of compulsory license in the event that effective use of
invention to satisfy the public interest can be realized by the
patent owner.
(2) In case that a patent application or use of the invention
forming the subject of patent have a great importance in terms of
public health or national security, the relevant ministry shall put
forward a proposal by means of taking approval of the Ministry of
National Defense or the Ministry of Health.
(3) The compulsory licenses granted by the reason of public benefit
may be exclusive. The compulsory license decision granted on the
grounds that it has great importance in terms of national security
may be limited to use of the invention by one or more businesses.
The legal nature of the compulsory license and trust relationship
ARTICLE 133- (1) Compulsory license is not exclusive but compulsory
licenses granted on the grounds of public interest may be exclusive.
Compulsory license shall be granted under certain conditions by
taking into account time, fee and usage area. The court considers
the economic value of patent in determining the fee of patent. While
fee is determined in compulsory licenses to be granted as per
subparagraph (ç) of first paragraph of Article 129, the economic
value of such a use in terms of importing country shall be taken
into consideration by means of considering non-commercial and
humanitarian purposes.
(2) In case of a compulsory license, the licensee has no right to
give sub-license and import the subject of patent. However, the
subject of patent can be imported in compulsory license granted
because of public interest if licensee is explicitly authorized for
importation due to public interest. This import permit shall be
granted for a limited need and a temporary time.
(3) If trust relationship between patent owner and licensee is
violated by the patentee by the reason of compulsory license,
licensee may request a discount from the license fee what patent
holder may request according to the effect of violation in the
assessment of the invention.
The scope of compulsory license in additional patent
ARTICLE 134- (1) Compulsory license includes the supplements of
existing patent on the date of acceptance of the license. If new
additional patents are granted after issuance of the compulsory
license and they serve same usage purpose with patent forming the
subject of license, licensee may also request court to include the
supplements in the scope of compulsory license. If parties disagree
on license fee and other conditions due to additional patents, these
shall be determined by court.
The transfer of compulsory license
ARTICLE 135- (1) The compulsory license shall be transferred in
conjunction with the business or section of the business where
license is evaluated to ensure that the transfer of a compulsory
license is valid. In case the compulsory license is granted due to
dependence to patent subjects, the license is transferred together
with the dependant patent.
The request for change in conditions and cancellation of compulsory
license
ARTICLE 136- (1) The licensee or patent holder, after the compulsory
license is granted, may request the court to make change in the
compulsory license fee or conditions based on events that occur
later and justify to make change such as granting the license
subject to contract under more favourable terms according to the
compulsory license.
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(2) In the event that the licensee seriously infringes or fails to
fulfil continuously its obligations arising from compulsory license,
the court may cancel the license upon the request of the patent
owner, without prejudice to right to compensation of patent owner.
(3) In the event that conditions caused to granting of the
compulsory license end and the possibility of repeating disappears,
the court cancels the compulsory license upon request.
Applicability of the contractual license terms
ARTICLE 137- (1) Not contrary to provisions of Article 126-136, the
provisions related to contractual license stated in Article 125 and
Article 126 are applied to the compulsory license as well.
SECTION EIGHT Termination of Right
PART ONE Invalidity
States of Invalidity
ARTICLE 138- (1) After the Office’sfinal decision;
a) If subject of patent does not have patentability conditions in
accordance with
Article 82 and Article 83,
b) If invention is not sufficiently explained in accordance with
first, second and third
paragraphs of Article 92,
c) If subject of patent exceeds the scope of first version of the
application or if
subject of patent exceeds the scope of first version of first
application where patent bases on a divided application according to
Article 91 or bases on an application made according to sub
paragraph (b) of third paragraph of Article 110.
ç) If it is proved that the patent owner does not have right to
demand patent according to the Article 109,
d) If the extent of protection is exceeded,
relevant court decides to accept invalidity the patent.
(2) Prior to the publication made in accordance with the third or
seventh paragraphs of Article 99, the court shall not decide with
regard to invalidity request made pursuant to subparagraphs (a), (b)
and (c) of first paragraph.
(3) The claim that the patent owner does not have right to demand
patent according to the Article 109 may only be alleged by holder of
invention or successors of holder of invention.
(4) If causes of invalidity are related to only a part of a patent,
the claim or claims related to only that part shall be cancelled and
the partial invalidity of the patent shall be decided. The partial
invalidity for a claim shall not be decided. If the claim or claims
that are not cancelled as a result of partial invalidity which have
patentability conditions in accordance with Article 82 and Article
83, the patent shall remain valid for this part. If the independent
claim is revoked, each dependent claim that is subject to
independent claim does not separately have patentability conditions
in accordance with Article 82 and Article 83, claims that are
subject to independent claim in question shall also be revoked by
the court.
(5) The invalidity proceeding of patent may be instituted against
those who are registered in register as the owner of patent during
duration of patent protection or within five years following
termination of right. Notification shall be made those who are
deemed
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as right holder on patent in register to ensure that they may
participate in the action.
(6) Persons concerned, Public Prosecutors or the relevant public
institutions and organizations may want the invalidity of patent. In
the event that the patent owner does not have right to demand patent
according to the Article 109, the invalidity of patent can be
demanded by only holder of invention or successors of holder of
invention.
(7) The decision regarding the invalidation of a patent shall not
compulsorily conclude in the invalidity of the additional patents.
If an application is not made to convert the additional patents to
independent patents within three months from the notification of the
invalidity decision, the invalidity of the patent shall cause the
invalidity of the additional
patents also.
The effect of invalidation of the patent
ARTICLE 139- (1) If it is decided that a patent is invalid, the
results of the decision
take effect retroactively and protection provided by this Act for
patent or patent application shall be deemed as null and void.
(2) Without prejudice to compensation demands of sufferers caused by
patent owner’s gross negligence or bad intention, retroactive effect
of invalidity shall not affect situations specified below.
a) Decisions given, legally finalized and implemented due to
infringement on rights provided by patents prior to the decision
regarding the invalidity of patent is given, b) Contracts concluded
and implemented prior to the decision regarding the invalidity
of patent is given,
(3) Pursuant to contract specified subparagraph (b) of second
paragraph, partly or
wholly return of paid price may be requested on an equitable basis.
(4) The final decision regarding the invalidity of patent shall bind
everyone. After the
finalization of the invalidity decision, the court notifies this
decision to the Office ex-officio. Patent that is revoked by final
judgment shall be cancelled from the register by the Office and this
state shall be published in the Bulletin.
PART TWO
Other Termination States and Its Results
Termination and its results
ARTICLE 140- (1) Patent right terminates in case of realizing of one
of states specified below;
a) the expiry of the protection period;
b) the waiver of the patent right of the patent holder;
c) failure to pay the annual fee within the periods foreseen in
Article 101.
(2) The Office publishes in the Bulletin that patent right
terminates. The subject of
patent the right of which terminates belongs to the public as from
execution date of reason of termination.
(3) The patent owner may waive the entire patent or one or more
patent claims. If a patent is waived partially, the patent remains
valid due to claim or claims from which are not waived provided that
claim or claims constitute the subject of separate patent and waiver
isn’t related to the extension of the scope of the patent.
(4) Waiver must be reported to the Office in writing. Waiver shall
be effective as from the record date in registration.
(5) Patent owner cannot waive patent right unless the right and
license holders registered in the registry give their permission.
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(6) If right ownership on patent has been requested by third party
and an interlocutory injunction taken in this regard has been
registered in the registry, patent owner may not waive patent right
unless third party in question gives its permission.
(7) Waiver decision regarding patent right shall be published in the
Bulletin.
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SECTION NINE Infringement on Patent Right
Actions deemed as infringement on patent utility model right
ARTICLE 141- (1) The following acts shall be considered as an
infringement on patent or utility model right.
a) To imitate partially or completely the product forming the
subject of invention as a result of production without the consent
of owner of patent or utility model.
b) To sell, distribute or release to commercial area the products
forming the subject of invention with other ways or to import it for
these purposes, to keep it for commercial purposes, to use it by
means of making applicable or to make suggestion draw up contract
related to the product through infringement action, although it is
known or it is required to know that product in question is
partially or completely produced through imitation.
c) To use the method forming the subject of invention without
receiving the consent of patent owner or to sell the products
produced directly by method forming the subject of invention, to
distribute or release to commercial area them or to import them for
these purposes, to keep them for commercial purposes, to use them by
means of making applicable or to make suggestion to draw up contract
related to these products, although it is known or it is required to
know that this method is used without permission.
ç) To seize the patent or utility model right.
d) To expand the rights granted by owner of patent or utility model
through contractual license or compulsory license without permission
or to transfer these rights to third parties.
(2) In the event that the subject of the patent becomes a method
related to obtaining of a product or material, the court may request
the defendant to prove that the method related to obtaining of the
same product or material is different from the method forming the
subject of patent. In case that product or material obtained by
method forming the subject of patent is new, the same product or
material produced without permission of patent owner is deemed to
have been obtained by the method forming the subject of patent.
Anyone who claims otherwise shall be obliged to prove it. In such a
case, the legitimate interests of the defendant shall be considered
to protect the production and business secrets of the defendant.
(3) Starting from the date of publication of patent application or
utility model application according to Article 97, the owner of the
patent application or utility model application shall be authorized
to institute a legal proceeding due to infringements carried out
against invention. If person who infringes on patent rights are
informed about application or the scope of application, whether
application is published or not shall not be taken into
consideration. If court decides that person who infringes on patent
rights has malicious intent, the existence of the infringement will
be accepted before the publication.
(4) Prior to the publication made in accordance with third and
seventh paragraph of Article 99 and the tenth or twelfth paragraph
of Article 143, the court shall not decide about the validity of the
claims alleged.
SECTION TEN Utility Model
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Inventions that can be protected by utility model and exemptions
thereof
ARTICLE 142- (1) Inventions which are new under first paragraph of
Article 83 and inventions which can be applied to industry in the
scope of sixth paragraph of Article 83 shall be protected by means
of giving utility model.
(2) In making the innovation evaluation of the utility model,
technical specifications that don’t contribute to the subject of
invention shall not be considered.
(3) In addition to the second and third paragraphs of Article 82;
a) Inventions related to chemical and biological substances or
chemical and
biological methods or products obtained by these methods,
b) Inventions related to pharmaceutical-related substances or
pharmaceutical-related
methods or products obtained by these methods,
c) Biotechnological inventions,
ç) Inventions relating to the products obtained by methods or these
methods shall not be protected by the utility model.
Type examination, demand research, appeal and granting of utility
model
ARTICLE 143- (1) In the event that any of the elements specified in
the third paragraph of Article 90 is lacking, utility model
application shall not be put in process.
(2) If at least one of the elements specified in the first paragraph
of Article 90 is lacking in application that was put in process or
if elements are given in a foreign language pursuant to the second
paragraph of the same article, these deficiencies are corrected
within two months as from the date of the application without the
need for notification or Turkish translation shall be supplied.
Otherwise, the application shall be deemed to have been withdrawn.
(3) Office carries out formal examination for the application in
terms of compliance with the fifth paragraph of Article 90 which has
complete elements specified in the first paragraph of Article 90 or
it examines the application whose elements are completed in
accordance with the second paragraph
(4) If it is understood that the application is not appropriate in
terms of formal requirements, the applicant shall be required to
correct the deficiency within two months as from the date of
notification. In the event that deficiency is not eliminated within
that time, the application shall be rejected.
(5) The applicant demands to make search with the application or by
paying the application fee and in accordance with the provisions
specified in the regulation within two months as from the
notification of consistency of the application regarding formal
examination or the correction of the deficiencies in due time
without the need for any notification. Otherwise, the application
shall be deemed to have been withdrawn.
(6) If the applicant demands to make search in accordance with the
fifth paragraph or first paragraph of Article 104, a search report
is issued; this report shall be sent to applicant and published in
the Bulletin.
(7) If it is reached the conclusion that the subject of application
enters into the scope of the third paragraph of Article 142 or if
preparation of search report is being prevented since description or
all claims aren’t sufficiently clear, search report isn’t prepared
and applicant is required to submit the objections about this issue
or the changes in the application within three months from the date
of notification. If any appeal is not made within this time or in
the event that changes made are not accepted by the Office, the
application is rejected. If any appeal and changes made are accepted
by the Office, a search report shall be issued; this report shall be
sent to applicant and published in the Bulletin.
(8) The applicant can appeal to the contents of the search report by
adding the relevant documents within three months as from the
publication of the search report and
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also third parties can present their opinions.
(9) If the applicant does not appeal or third parties don’t present
their opinions, only
search reports shall be considered and in case of appeal or
presenting opinions, search report, appeals and opinions shall be
considered.
(10) If the Office decides to grant utility model as a result of its
assessment, this decision shall be notified to applicant, also
decision and utility model shall be published in the Bulletin. In
cases where the performance of changes is required to grant utility
model as a result of assessment made, it shall be required to fulfil
the changes within two months from the date of notification. In case
of acceptance of amendments made, decision is given to grant utility
model and this situation is notified to applicant and this decision
and utility model shall be published in the Bulletin. In the event
that the amendments aren’t made or amendments made aren’t accepted
by the Office, application shall be deemed to have been withdrawn,
this decision is notified to applicant and published in the
Bulletin. In case that utility model is requested after the
publication related to granting of it and document preparation fee
is paid, issued document shall be given to the owner of utility
model.
(11) After giving the utility model, appeal procedure specified in
the Article 99 cannot be operated, but only invalidation decision
shall be requested from the court.
(12) If the Office decides as a result of its assessment that the
application and invention related to the application don’t comply
with provisions of this Act, this application shall be rejected and
the decision shall be notified to the applicant and published in the
Bulletin. This decision can be appealed according to Article 100.
(13) Granting of the utility model cannot be interpreted as a
guarantee given by the Office about validity and the usefulness of
utility model and it does not cause to the responsibility for the
Office.
(14) Principle and procedures for the implementation of this article
shall be determined by a regulation.
The invalidation of the utility model
ARTICLE 144- (1) Decision shall be given by the competent court to
accept the invalidation of the utility model in the following cases.
a) If the subject of utility model does not meet the conditions
specified in Article 142.
b) If the invention isn’t sufficiently explained in accordance with
the first paragraph of article 92.
c) If subject of utility model exceeds the scope of first version of
the application or if utility model exceeds the scope of first
version of first application where utility model bases on a divided
application according to Article 91 or bases on an application made
according to sub paragraph (b) of third paragraph of Article 110.
ç) If it is proved that the owner of utility model does not have
right to demand utility model according to the Article 109.
(2) Those that have interests, Public Prosecutors or the relevant
public institutions and organizations may demand the court to accept
the invalidity of utility model. In the event that the owner of
utility model does not have right to demand utility model according
to the article 109, the invalidity of utility model can be demanded
by only holder of invention or successors of holder of invention.
(3) The invalidity proceeding of utility model may be instituted
against those who are registered in register as the owner of utility
model during duration of utility model protection or within five
years following termination of right. Notification shall be to made
those who are deemed as right holder on utility model in register to
ensure that they may participate in the action.
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(4) The claim that the owner of utility model does not have right to
demand utility model according to the article 109 may only be
alleged by holder of invention or successors of holder of invention.
(5) If causes of invalidity are related to only a part of the
utility model, the claim or claims related to only that portion
shall be cancelled and the partial invalidity of the utility model
shall be decided. The partial invalidity for a claim cannot be
decided.
(6) If the claim or claims of utility model which aren’t cancelled
comply with the provisions of article 142 as a result of partial
invalidity, the utility model remains valid for this claim or
claims.
The applicability of the provisions related to patents and double
protection ARTICLE 145- (1) In the event that there is no a clear
provision related to the utility
model and any provision do not contradict with the nature of the
utility model, the provisions foreseen in this Code for patents
shall also be applied to utility models.
(2) The same person or his successor shall not be granted more than
one patent or utility model or any two of these documents
independently of each other about the same invention and in the same
scope of protection.
BOOK FIVE Common and Other Provisions
SECTION ONE Common Provisions
Period and notifications
ARTICLE 146- (1) Period to be observed in all actions to be made
related to industrial property rights before the Office including
the appeals shall be two months from the notification date unless
specified otherwise in this Code or the relevant regulation. In case
of failure to obey these periods, the demand shall be deemed not to
have been made.
Joint representative
ARTICLE 147- (1) If industrial property right belongs to more than
one person, in case a trademark or patent representative has not
been assigned, all operations before the Office, except for the
demand for withdrawal and waiver, shall be carried out by the right
owner who is assigned as joint representative by right holders. In
case a joint representative has not been assigned by right holders,
first right holder mentioned in application form shall be deemed as
joint representative.
(2) In case the domicile of the joint representative is not within
the territories of the Republic of Turkey, all operations shall be
carried out by a trademark or patent attorney.
(3) Provisions relating to the collective trademarks are reserved.
Legal actions
ARTICLE 148- (1) The industrial property right may be transferred,
inherited, become the subject of license; put in pledge; shown as
collateral, seized or become the subject of other legal actions. The
right over geographical sign and traditional product name may not be
subject to license, transfer, inheritance, confiscation and similar
legal actions and may not be used as collateral.
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(2) The legal actions specified in the first paragraph may be
carried out independent of the business.
(3) In case there is more than one owner of industrial property
right, other stakeholders shall have pre-emption right when any of
the owners sell its share partly or wholly to a third party. The
sale shall be reported to other stakeholders by the buyer or seller.
Pre-emption right shall be void when a period of three-month elapses
after the date of the notification to right owner of sale and in any
case when a period of two-year elapses after sale. If the parties
cannot agree, pre-emption right shall be exercised by litigating
against the buyer. The owner of pre-emption right shall be obliged
to pay the selling price in cash to the place to be determined by
the court within the period specified by the court prior to decision
of transferring the share to the owner. The pre-emption right may
not be used in forced sales.
(4) Legal actions shall be subject to written form. Transfer
contracts shall be valid only if they have been approved by notary.
(5) Legal actions are registered and published in the Bulletin upon
the request of one of the parties, payment of the fees and the
fulfilment of the other conditions specified in the regulation.
Without prejudice to the provisions of Article 115, rights arising
from legal actions not registered in the registry may not be claimed
against third parties acting in goodwill.
(6) Trademark may be transferred for all or part of the goods or
services for which it is registered.
(7) The transfer of the certification mark or collective trademark
or licensing a collective trademark shall be valid when registered
in the registry.
(8) The provisions of this Article shall also be applied to
industrial property right applications.
Claims that can be made by right owner whose industrial property
right is infringed
ARTICLE 149- (1) Right owner whose industrial property right is
infringed can claim the following from the court:
a) To determine the existence of infringement.
b) To prevent the possible infringement.
c) To stop the infringing actions.
ç) To remedy infringement and compensate material and moral
damages.
d) To seize the products causing infringement or requiring penalty,
as well as
instruments, such as devices and machine exclusively used in their
production, without preventing the production of products other than
infringing products.
e) To be granted property right on products, devices and machines
seized in accordance with subparagraph (d).
f) To take measures to prevent the continuity of infringement, in
particular at the expense of the infringer to change the shapes of
products and instruments such as device and machine seized according
to subparagraph (d), to erase the trademarks on them or to destroy
them if it is inevitable for preventing the infringement of
industrial property rights.
g) If there is any justified reason or interest, announcement of the
final judgment at the expense of the opposite party fully or in
summary through the daily newspapers or other means or notification
to relevant parties.
(2) In case of acceptance of the claim specified in subparagraph (e)
of first paragraph, the value of devices and machines shall be
deducted from amount of compensation. If this value exceeds the
amount of agreed compensation, exceeding portion shall be paid to
opposite party by right owner.
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(3) In case of acceptance of the claim specified in subparagraph (g)
of first paragraph, the form and scope of announcement shall be
determined in the ruling. The right for announcement shall be void
unless demanded within three months after final ruling.
(4) Compensation of moral damage may not be claimed for geographical
sign and traditional product names.
Compensation
ARTICLE 150- (1) Those who commit acts deemed as infringement on
industrial property right shall be obliged to compensate the damage
of right owner.
(2) Where the industrial property right is infringed, additional
compensation may be claimed if reputation of industrial property
right suffers damage because the products or services forming the
subject of the right are used or produced in an inferior manner; or
such products produced in this way are made available or launched to
the market in an improper manner.
(3) The right owner, before instituting a legal proceeding for
compensation related to infringement of industrial property right,
in order to determine the evidences or if a legal proceeding for
compensation has been instituted, in order to determine the amount
of damages, may ask the court to order the person responsible for
compensation to submit to the court the documentation related to the
use of industrial property right.
Loss of revenue
ARTICLE 151- (1) Damage suffered by the right owner includes actual
loss and loss of revenue.
(2) Loss of revenue, depending on the choice of the right owner who
suffered damages, shall be calculated according to one of the
following evaluation methods:
a) The potential revenue to be gained by right owner if the
competition by the person infring the industrial property right had
not existed.
b) The net revenue obtained by the person infringing the industrial
property right.
c) License fee to be paid by the person who infringed the industrial
property right, if this person used this right through a license
agreement in accordance with the law.
(3) In calculation of loss of revenue; factors such as economic
importance of industrial property right in particular or the number,
time and type of licenses related to industrial property right
during infringement action and the nature and size of violation
shall be taken into consideration.
(4) In calculation of loss of revenue; in the event that one of the
evaluation methods specified in the subparagraph (a) or (b) of the
second paragraph is selected and if court reaches the conclusion
that industrial property right has been the determinant factor in
creating the demand to that product, then the court shall decide
that an equitable share be added in the calculation of revenue.
(5) In case of infringement of patent rights; if the court reaches
the conclusion that the patent owner did not fulfil the obligations
to use the patent as foreseen by this Code, loss of revenue shall be
calculated according to the subparagraph (c) of the second
paragraph.
(6) The provisions of this Article shall not be applied in case of
infringement of geographical sign or traditional product name.
Exhaustion of Rights
ARTICLE 152- (1) After the products forming the subject of
protection of industrial property right are put on the market by
right owner or by third parties with his consent, actions related to
these products shall remain outside the scope of the right.
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(2) Proprietor of trademark shall have the right to prevent the use
for commercial purposes by means of changing or deteriorating by
third parties of the products under the first paragraph.
Persons who may not be sued
ARTICLE 153- (1) Owner of industrial property right may not
institute civil proceedings indicated in this Code or file a
complaint for a criminal proceeding against persons who retain or
use for their personal needs the products put on the market by the
infringer.
(2) Owner of industrial property right may not institute civil
proceedings indicated in this Code or institute a complaint for a
criminal proceeding against persons who use for commercial purposes
the products put on the market, due to right owner’s failure of
confiscation, by the person who pays compensation of damages to the
right owner.
Legan proceeding on noninfringement and conditions
ARTICLE 154- (1) Anyone who has interest may demand the right owner
to provide its opinions about whether or not commercial or
industrial activities being carried out or to be carried out or
serious and actual attempts carried out for these purposes in Turkey
would cause an infringement of his industrial property right. In the
event that no opinion is given within one month after notification
of this demand or if the opinion given is not accepted by the
interested party, the interested party may institute a legal
proceeding against the right owner for a decision on
noninfringement. The submission of opinion shall not be a
prerequisite for the legal proceeding to be instituted. This
proceeding may not be filed by a person against whom an infringement
proceeding has been instituted.
(2) Legal proceeding instituted in accordance with the first
paragraph is notified to all right owners registered in the
registry.
(3) Legal proceeding instituted in accordance with the first
paragraph may be opened together with the invalidity proceedings.
(4) The court shall not decide on the validity of the allegations
before the publication in accordance with the third or seventh
paragraph of Article 99 and the tenth or twelfth paragraph of
Article 143.
Effect of earlier rights
ARTICLE 155- (1) Trademark, patent or design right owner shall not
put forward his industrial property right as a defense in an
infringement proceeding that has been instituted by right owners who
have an earlier priority or application date than his own right.
Commissioned and competent court
ARTICLE 156- (1) The courts commissioned for legal proceedings
foreseen in this Code shall be civil courts of intellectual and
industrial property rights and criminal courts of intellectual and
industrial property rights. These courts, upon acquiring positive
opinion of the High Council of Judges and Prosecutors, shall be
established in places considered to be necessary by the Ministry of
Justice at the level of court of first instance and with a single
judge. The area of authority of these courts shall be identified in
line with the provisions of the Law dated 26/9/2004 and numbered
5235 on Establishment, Duties and Authorities of the Judicial Courts
of First Instance and Regional Judiciary Courthouses. In places
where there is no civil court of intellectual and industrial
property rights, the local civil court of first instance; where
there is no criminal court of intellectual and industrial property
rights, the local criminal court of first instance shall undertake
the legal proceedings and works that are within the scope of these
courts.
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(2) In legal proceedings to be instituted against all decisions
taken by the Office according to the provisions of this Code and in
proceedings to be instituted against the Office by third parties
adversely affected by a decision of the Office, commissioned and
competent court shall be the Ankara Civil Court of Intellectual and
Industrial Property Rights.
(3) In legal proceedings to be instituted against third parties by
the owner of industrial property right, competent court shall be the
court where plaintiff is domiciled or where the action violating the
law has taken place or where the impacts of this action are
observed.
(4) In case the plaintiff does not have domicile in Turkey,
competent court shall be the court where, at the instituting date of
the legal proceeding, the business place of the attorney registered
in registry is located, and if the record of the attorney has been
deleted, competent court is the court where the headquarters of the
Office is located.
(5) In legal proceedings to be instituted against the owner of
industrial property right by third parties, competent court is the
court where the defendant is domiciled. In case the owner of the
industrial property right application or the industrial property
right does not have domicile in Turkey, the provisions of the fourth
paragraph shall be applied.
Prescription
ARTICLE 157- (1) In claims concerning private law arising from
industrial property right or traditional product name, prescription
provisions of Turkish Code of Obligations dated 11/01/2011 and
numbered 6098 shall apply.
Legal proceeding by licensee and conditions
ARTICLE 158- (1) Unless otherwise agreed in the contract, person who
has an exclusive license, in case of infringement of industrial
property right by a third party, may institute legal proceeding on
his own, which may be filed by the right owner in line with this
Code.
(2) Person who has non-exclusive license, if right to institute a
legal proceeding due to infringement of industrial property right is
not expressly limited in the contract, with a notification, shall
request the right owner to institute the required legal proceeding.
In case the right holder does not accept this request or does not
file the requested legal proceeding within three months, licensee
may institute the legal proceeding in its own name and to the extent
of his own interests. Licensee who institutes a legal proceeding
according this paragraph shall notify the legal proceeding to right
owner.
(3) The licensee, in the presence of serious damage risk and before
the expiration of the relevant period, may request the court to
order an interlocutory injunction. In cases where court orders an
interlocutory injunction, licensee shall be authorized to institute
a legal proceeding. In such case, terms specified in the second
paragraph shall be completed while trial continues.
Request for interlocutory injunction and the scope of interlocutory
injunction
ARTICLE 159- (1) Persons who have the right to institute a legal
proceeding under this Code, on the condition that they prove that
the action forming the subject of the legal proceeding violates the
industrial property right within the country or serious and
effective undertakings are performed to that end, may request the
court to order an interlocutory injunction to ensure the
effectiveness of judgment to be delivered.
(2) Interlocutory injunctions should especially cover the following
measures:
a) To prevent and stop the actions, which constitute infringement of
plaintiff’s
industrial property right.
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b) To seize and store at their location anywhere within territories
of Republic of Turkey including areas such as customs and free port
or zone, the products infringing the industrial property right that
were produced through infringing the industrial property right or
imported; without preventing the production of products other than
infringing products, instruments exclusively used in the production
of infringing goods or instruments used in performing a patented
method.
c) To submit a security in terms of compensation for any damage.
(3) In the matters for which there are no provisions in this Code
regarding interlocutory injunctions, the provisions of Code of Civil
Procedure dated 12/01/2011 and numbered 6100 shall apply.
Authorized respresentatives and notification
ARTICLE 160- (1) Natural or legal entities and the registered
trademark or patent attorneys authorized by those persons may
perform an operation before the Office.
(2) Legal entities shall be represented by a natural person or
persons assigned by their authorized organs.
(3) The persons whose domiciles are situated abroad shall only be
represented by trademark or patent attorneys. Any operations
conducted by such legal entity without being represented by an
attorney shall be deemed void.
(4) When a trademark or patent attorney is assigned; all operations
shall be performed by the attorney. The notification made to the
attorney shall be deemed as made to the principal.
(5) When deemed necessary, the Office may request the submission of
the original or certified copy of the power of attorney evidencing
the authority of the attorney.
(6) The notifications to be made in the implementation of this Code
shall be delivered in electronic environment by placing at the
electronic mailbox allocated for the natural person or legal entity
by the Office without being bound to the procedures related to
electronic notification regulated in Article 7/a of the Notification
Law no. 7201 of 11/2/1959, provided that the approval of the
addressee is taken. The notifications made in this manner shall be
deemed as delivered on the first date the addressee logs into the
mailbox after the document to be notified is placed at the inbox and
in any case, by the end of the tenth day following the placement of
the document at the inbox.
(7) The notifications to be made in the scope of the implementation
of this Code shall be made through the related Bulletin without
being bound to the provisions of Article 29 of the Law no. 7201
related to the form of notification by publication. The
notifications made in this manner shall be deemed as delivered seven
days after the publication date of the Bulletin.
(8) The Office is authorized to establish any kind of technical
infrastructure related to applications and notification in
electronic environment, or use the already established ones,
stipulate the applications and notifications be made electronically
and determine other procedure and rules related to the items to be
notified electronically and the electronic applications and
notifications.
Fees, payment term and consequences
ARTICLE 161- (1) In case of failure to submit the Office within the
prescribed period the information that the obligatory fees have been
deposited for the processes related to the grant or registration of
industrial property right, it shall be deemed that the industrial
property right application has been withdrawn.
(2) In case of failure to submit the Office within the prescribed
period the information that the obligatory fees related to an
industrial property right registered at the registry are
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deposited for the processes other than the ones covered under the
first sub-clause, it shall be deemed that the relevant request was
not made.
(3) Except for the Articles 15, 18, 20, 23 and 69, should the
obligatory fees for the processes related to applications or
industrial property rights are deposited deficiently, the deficit
amount of fee shall be notified to the requesting party by the
Office. In case of failure to submit the Office in due time the
information that the deficient fee has been deposited within one
month of the notification date, the provisions of the first and
second paragraphs shall be applied.
(4) Unless stated otherwise, the deposited fees shall not be
returned and the deposited fees shall be recorded as revenue by the
Office.
Enforcement of decisions
ARTICLE 162- (1) Where invalidity or annulment of Board resolutions
are claimed, decisions in legal proceedings may not be executed
until the final verdict. This provision shall also apply for verdict
annexes.
Fast destruction procedure
ARTICLE 163- (1) If the infringing goods, seized or placed under
protection due to the crimes mentioned under this Code cannot be
preserved at the custodial office due to quantity, size or
character; after taking sufficient samples from the goods, which are
suitable for collection of samples, in line with the instructions of
the public prosecutor, the remaining goods shall be sent to the
financial organization of the locality. The official record
including all information such as quantity, type, and size related
to the goods seized together with samples shall be delivered to the
office of the prosecutor.
(2) In case there is a risk that the infringing goods delivered to
the financial organization of the locality, after taking sample as
per the first paragraph, would be damaged or fundamentally lose
value or the preservation thereof provides a significant burden;
after the expert examination is completed, based on the request of
the public prosecutor at the investigation phase the judge or at the
prosecution stage the court shall decide on the destruction of those
goods before the verdict. The destruction shall be performed at the
presence of a committee comprised of three persons established by
the financial organization under the chairmanship of the public
prosecutor and a report shall be prepared.
The provisions that apply to traditional product names
ARTICLE 164- (1) The provisions of Articles 146, 147, 149, 150, 152,
153, 154, 156, 159 and 161 shall apply also to traditional product
names.
Regulation
ARTICLE 165- (1) The regulations related to the implementation of
this Code shall be entered into force by the Office.
SECTION TWO Other Provisions
ARTICLE 166- Paragraphs (a), (e), (i) and (k) of the first
sub-clause of Article 3 of the Law no. 5000 of 6/11/2003 on the
Establishment and Functions of the Turkish Patent Institute have
been amended as follows:
“a) Performs, as per the relevant legislation, processes related to
the registration of patents, utility models, trademarks,
geographical signs, traditional product names, designs
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and integrated circuit topography, and the undertakes procedures for
the protection of these rights,”
“e) Conducts relations and cooperates with the European Union,
international organizations and foreign countries in the field of
industrial property,”
“i) Makes publications related to industrial property rights,”
“k) Conducts studies for organizing trainings to persons and
organizations domestically and abroad in the field of industrial
property, supports training activities and academic studies related
to the subjects covered under its field of duty,”
ARTICLE 167- Article 7 of the Law no. 5000 has been amended as
follows:
“ARTICLE 7- The Advisory Board of the Office is comprised of one
each member from the Ministry of Justice, Ministry of European
Union, Ministry of Science, Industry and Technology, Ministry of
Labour and Social Security, Ministry of Environment and
Urbanization, Ministry of Foreign Affairs, Ministry of Economy,
Ministry of Food, Agriculture and Livestock, Ministry of Customs and
Trade, Ministry of Internal Affairs, Ministry of Development,
Ministry of Culture and Tourism, Ministry of Finance, Ministry of
National Education, Ministry of National Defense, Ministry of
Forestry and Water Magement, Ministry of Health, Ministry of
Transport, Maritime Affairs and Communications, Undersecretariat of
Treasury, Turkish Scientific and Technologic Research Authority,
Turkish Atomic Energy Authority, Presidency of Development and
Support of Small and Medium Size Enterprises, Turkish Exporters
Assembly, Turkish Union of Chambers of Stock Exchanges, Turkish
Union of Chambers of Engineers and Architects, Turkish Doctors
Union, Turkish Veterinary Doctors Union, Turkish Pharmacists Union,
Turkish Tradesmen and Artisans Confederation and one member from
each of the worker and employer syndicate confederations with
highest number of members; plus five members to be determined among
universities by the Council of Higher Education.
The Magament Board may invite experts to the meetings of the
Advisory Board when necessary.
The period of membership at the Advisory Board shall be two years.
The members whose period has expired may be re-elected.
The working procedure and rules of the Advisory Board shall be
determined with a regulation.
The Advisory Board shall convene at least once a year. The meetings
shall be chaired by the Minister of Science, Industry and Technology
or a person to be commissioned by the Minister.”
ARTICLE 168- Article 10 of the Law no. 5000 has been amended
together with its title as follows:
“Intellectual Property Academy and Industrial Property Rights
Training Centre
ARTICLE 10- In order to conduct training, consultancy and research
activities related to intellectual property rights, the Intellectual
Property Academy; in order to conduct training activities related to
industrial property rights, within the Office structure, the
Industrial Property Rights Training Centre, have been established.
Under the Academy, training activities related to copyrights shall
be conducted by Ministry of Culture and Tourism Copyrights Training
Center, training activities related to industrial property rights
shall be conducted by Turkish Patent and Trademark Office Industrial
Property Rights Training Center. Expenses of the centers shall be
covered by Ministry of Culture and Tourism or the Office depending
on the relation.
A Steering Board shall be gathered to perform planning and
consultancy related to the training and research activities to be
conducted at the Intellectual Property Academy.
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This Board shall be comprised of the following eight members: a
representative from the Office, a representative from the related
unit of the Ministry of Culture and Tourism, two university
academics where one is an expert on industrial property rights and
the other is an expert on copyrights, one patent or trademark
attorney, a sector representative working in the field of
copyrights, a member identified by the Court of Cassation among
members of relevant chamber subject to the member’s consent, and a
judge working at intellectual and industrial propert rights civil or
criminal courts determined by the related department of the High
Council of Judges and Prosecutors. The Steering Board meetings shall
be made under the co-chairmanship of the Office representative and
the representative of the Ministry of Culture and Tourism. The
members other than judges are commissioned by the Ministry of
Culture and Tourism or the Office as applicable. The members whose
period has expired may be re-commissioned.
The working procedure and rules of the Intellectual Property Academy
and the training centers, secretariat services, the fees taken for
the given services, the issues regarding training activities and
other matters shall be determined with a regulation to be
administered jointly by the Ministry of Culture and Tourism and the
Office.”
ARTICLE 169- Paragraphs (c) and (d) of the first paragraph of
Article 11 of the Law no. 5000 has been amended as follows and the
following paragraphs have been added:
“c) Department of Designs,
d) Department of European Union and Foreign Affairs e) Department of
Innovation and Promotion
f) Department of Geographical Signs
g) Department of Re-examination and Evaluation”
ARTICLE 170- Article 14 of the Law no. 5000 has been amended
together with its title as follows:
“Department of Designs
ARTICLE 14- Department of Designs shall;
a) Perform the recording, filing, search, examination, assessment
and registration
processes of the design registration applications as per the
relevant legislation provisions,
b) Perform the procedures on licensing, transfer and various changes
of designs and
design applications as per the relevant legislation provisions,
c) Perform the procedures on announcement, classification and
registry of designs, d) Undertake the secretariat of the Turkish
Design Advisory Council,
e) Perform other works as assigned by the Presidency.”
ARTICLE 171- Article 15 of the Law no. 5000 has been amended
together with its title as follows:
“Department of European Union and Foreign Affairs
ARTICLE 15- Department of European Union and Foreign Affairs shall;
a) Make preparations for negotiations, attends meetings, ensures
coordination among
the Office units related to the topics covered by the duty field of
the Office concerning the European Union,
b) Conduct relations with foreign countries and international
organizations in the topics covered by the duty field of the Office,
ensure coordination, assist in the preparation of bilateral and
multilateral cooperation agreements, regional cooperation agreements
and protocols,
c) Monitor and examine the legislation of foreign countries and
international agreements related to the topics covered by the duty
field of the Office, conduct the
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activities that need to be performed to fulfil the liabilities,
d) Perform other works as assigned by the Presidency.”
ARTICLE 172- The following Articles 15/A, 15/B and 15/C have been
added to the Law no. 5000 to follow Article 15:
“Department of Innovation and Promotion
ARTICLE 15/A- Department of Innovation and Promotion shall;
a) In order to create value for the country economy through
industrial property
rights, conduct activities such as determining the assets of natural
persons and legal entities that are or can become subject of
industrial property, determine the means of utilizing these assets,
monitor related sectors, perform survey activities and other similar
activities,
b) Conduct activities related to the value and economic impacts of
industrial property assets,
c) Identify new technologies and conducts commercialization
activities such as mediation for technology transfer operations,
d) Collect and classify all the data obtained as a result of
innovation support activities and presents them to public use,
e) Provide consultancy service in the areas covered under innovation
support activities,
f) Prepare and publish materials in any media, documentaries,
conceptual and promotion films containing the subjects of industrial
property rights, legislation, application guidelines and brochures
related to the duties of the Office,
g) Determine, plan and implement targets and strategies related to
the promotion of industrial property rights,
h) Organize any kind of training activities, seminars, conferences,
symposiums and similar activities related to industrial property
rights, conduct the preparations for participating to fairs,
i) Conduct the necessary cooperation studies to ensure that the
information document units of the Office perform their activities,
j) Perform other works as assigned by the Presidency.
Department of Geographical Signs
ARTICLE 15/B- Department of Geographical Signs shall;
a) Conduct the recording, search, examination, assessment and
registration processes
related to geographical signs and traditional product names,
b) Perform the announcement and registry processes of geographical
signs and
traditional product names,
c) Perform other works as assigned by the Presidency.
Department of Re-examination and Evaluation
ARTICLE 15/C- Department of Re-examination and Evaluation shall
conduct directly under the President the processes of examining and
evaluating the appeals against the final decisions given by the
relevant department on the proceedings about the industrial property
rights and traditional product names, which would be made within two
months of notification of the said decision by persons being party
to those proceedings and whose interests would be affected.
The decisions on the subject requested to be examined and evaluated
shall be taken by a Board comprised under the chairmanship of the
Head of Department with the participation of at least two expert
members specialized in the field to be examined and evaluated and
who had no connection to the decision of the Office being appealed.
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The decisions of the Department of Re-examination and Evaluation
shall be final. A legal proceeding can be instituted against these
decisions at Ankara Intellectual and Industrial Rights Civil Court
within two months of the notification date of the decision. Until
finalized, the verdict related to the annulment of the decisions of
the Board of Re- examination and Evaluation may not be executed.
This provision shall also apply for verdict annexes. The period of
prescription for the mentioned verdicts commence with the date of
the final decision.”
ARTICLE 173- Paragraphs (b) and (c) of the first paragraph of
Article 16 of the Law no. 5000 have been amended as follows:
“b) Department of Support Services
c) Department of Information Technology”
ARTICLE 174- Article 18 of the Law no. 5000 has been amended
together with its title as follows:
“Department of Support Services
ARTICLE 18- Department of Support Services shall;
a) Perform renting and purchasing activities in the framework of the
provisions of
the Public Financial Management and Control Law no. 5018 of
10/12/2003, perform or procure cleaning, security, lighting,
heating, repair, transport and similar services,
b) Arrange and execute central registry and archive activities,
c) Conduct the processes related to the movable and immovable
properties of the Office as per the relevant legislation,
d) Plan and execute civil defence and mobilization services of the
Office, e) Execute library services,
f) Perform other works as assigned by the Presidency.”
ARTICLE 175- Article 19 of the Law no. 5000 has been amended
together with its title as follows:
“Department of Information Technology
ARTICLE 19- Department of Information Technology shall;
a) Monitor information technologies and determine the automation
strategies of the
Office, take the precautions necessitated by information security,
generate solutions conforming to public information technology
standards,
b) Conduct the information technology services of the Office,
c) Perform technical studies related to the web pages, electronic
signature and electronic document applications of the Office,
d) Collect information related to the services of the Office and
creates databases,
e) Conduct works related to the establishment, maintenance, supply,
development and updating of the existing information technology
infrastructure of the Office; ensure communication security,
f) Ensure data transfer among the Office and the documentation
centres and the national and international organizations that the
Office cooperates with, establishes and develop the technical
coordination required for electronic communication,
g) Collect information gathered from domestic and foreign sources
related to industrial property in electronic media, evaluate and
submit such information to the use of the related units,
h) Perform other works as assigned by the Presidency.”
ARTICLE 176- The following paragraph has been added to the first
paragraph of
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Article 20 of the Law no. 5000:
“c) Department of Strategy Development”
ARTICLE 177- Article 22 of the Law no. 5000 has been amended as
follows: “ARTICLE 22- Legal Counsel shall;
a) Perform the tasks assigned to legal units as per the provisions
of the Decree Law
no. 659 of 26/9/2011 related to the Execution of Legal Services at
Public Administrations covered by the General Budget and Private
Budget Administrations,
b) Perform other works as assigned by the Presidency.”
ARTICLE 178- The following Article 22/A has been added to the Law
no. 5000 to come subsequent to Article 22:
“Department of Strategy Development
ARTICLE 22/A- Department of Strategy Development shall;
a) Perform the tasks assigned to strategy development and financial
services unit as
per the Law no. 5018, Article 15 of the Law no. 5436 of 22/12/2005
and other legislation, b) Perform other works as assigned by the
Presidency.”
ARTICLE 179- The first paragraph of Article 23 of the Law no. 5000
has been amended as follows and the expression of “and obtaining
positive opinion” at the third and fourth paragraphs and paragraph
(b) of the sixth sub-clause has been annulled.
“The members of the Office’s Management Board shall be appointed
among persons that have graduated from a domestic or abroad higher
education institution of at least four years duration, with
sufficient occupational knowledge and ten years of experience. The
representatives of the Ministry of Justice and Ministry of Finance
shall have at least ten years of employment in the relevant Ministry
and have adequate occupational knowledge and experience; and one of
the members to be determined by the Minister of Science, Industry
and Technology shall be a representative of the Turkish Union of
Chambers and Stock Exchanges with at least ten years of experience
in the public and/or private sector. These members should also bear
the conditions at paragraph (a) of Article 48 of the Civil Servants
Law no. 657 of 14/7/1965.”
ARTICLE 180- Article 26 of the Law no. 5000 has been amended as
follows:
“ARTICLE 26- In line with the needs of the Office, domestic and
foreign experts may be employed under a contract for a provisional
term domestically or from abroad based on the approval of the
Management Board. The net amount of wage to be paid to these experts
shall be determined by the Management Board such that this wage does
not exceed the monthly average net salary paid to a first degree
Industrial Property Expert. The procedure and rules related to their
employment shall be determined with a regulation to be enforced with
the decision of the Council of Ministers based on the suggestion of
the Office and the proposal of the Minister of Science, Industry and
Technology.
For the works and services necessitating a specific expertise, based
on a resolution of the Management Board, a work contract shall be
made.
The Office may utilize the services of domestic and foreign
organizations in the execution of the processes related to
industrial property rights. The fees for such services shall be
collected by the Office together with the fees of the services to be
given by the Office and payments to the relevant organizations shall
be made by the Office.
The payments to the Chairman and members of the Management Board
shall be processed according to the wage payment for the duties of
the chairman and members of the management boards of public economic
enterprises.”
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ARTICLE 181- Article 30 of the Law no. 5000 has been amended as
follows:
“ARTICLE 30- As regards the industrial property rights and
traditional product names, the natural persons or legal entities
with the authority to provide consultancy and perform on behalf of
the applicants operations before the Office shall be the patent
attorneys for patent, utility model and integrated circuit
topography topics; the trademark attorneys for trademarks,
geographical signs and traditional product names; and both patent
attorneys and trademark attorneys for designs.
The natural persons shall satisfy the following conditions to become
a patent attorney or trademark attorney:
a) Being a citizen of the Republic of Turkey.
b) Having capacity to act.
c) Having graduated from a higher education institution providing at
least four years
of undergraduate education or higher education institutions abroad
whose equivalency to the former have been recognized by relevant
authorities.
d) Not having being sentenced for an intentional crime against the
security of the State with imprisonment of five years or more or
even if pardoned and even if the periods stated at Article 53 of the
Turkish Criminal Code no. 5237 of 26/9/2004 have expired, crimes
against Constitutional order and the functioning thereof,
embezzlement, extortion, bribery, theft, swindling, fraud, abuse of
trust, fraudulent bankruptcy, collusive tendering, scheming in
acquisition, laundering of assets from crimes or smuggling.
e) Having domicile in Turkey.
f) Having successfully passed patent attorney or trademark attorney
examinations.
It is obligatory that the legal entity patent attorney or trademark
attorney be founded
as a limited liability or incorporated company as per the laws of
the Republic of Turkey; the operation subject covers the activity of
patent attorney or trademark attorney, and is represented by natural
person patent attorney or trademark attorney. Even if the natural
person attorney is the partner or employee of multiple legal entity
attorneys, he may use the attorney authority to represent only one
legal entity attorney. The persons that use their attorney authority
in this manner may not act as a natural person attorney. The natural
person attorney, without prejudice to his own personal criminal
liability, shall be jointly and severally responsible against the
proxy giver together with the represented legal entity attorney.
The patent attorney and trademark attorney examinations are held
once every two years by the resolution of the Management Board. Only
the ones satisfying the conditions at paragraphs (a), (b), (c) and
(d) of the second paragraph shall be admitted to the examination.
It is obligatory for the ones successful in the patent attorney or
trademark attorney examinations to be registered in the Patent
Attorneys Registry to act as a patent attorney and at Trademark
Attorneys Registry to act as a trademark attorney. The period and
amount of the occupational liability insurance that needs to be made
at initial registration and registration renewals shall be
determined by the Management Board.
The procedure and rules related to the examination and registry
processes for patent attorneys and trademark attorneys, and other
matters related to patent attorneys and trademark attorneys shall be
determined with a regulation.
The examination related to patent attorney and trademark attorney,
certificate issuance, registration to registry and registration
renewal fees shall be determined by the Office.
Regarding power of attorney, the provisions of Turkish Code of
Obligations no. 6098 of 11/1/2011 related to power of attorney shall
apply for the cases that are not covered by this Law.”
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ARTICLE 182- The following Article 30/A has been added to the Law
no. 5000 to come subsequent to Article 30:
“Disciplinary penalties, the actions necessitating a penalty and
disciplinary board
ARTICLE 30/A- The disciplinary penalties stipulated in this Law
shall be enforced for the ones that conduct attitudes and behaviour
violating the patent attorney and trademark attorney occupation
codes prepared and published at the official web site of the Office
upon obtaining the opinion of the Turkish Union of Chambers and
Stock Exchanges and the organization related to attorneys with the
highest number of members; and for the ones failing to perform the
duties necessitated by being an attorney.
The disciplinary penalties to be enforced on the patent attorneys
and trademark attorneys, and the actions and situations for which a
disciplinary penalty shall be enforced are as follows:
a) Warning: Notification in writing that the person should act more
attentively in the execution of attorneyship and his occupational
attitudes and behaviours. Warning penalty shall be enforced for the
attorneys that conduct attitudes and behaviour violating
occupational codes.
b) Reprimand: Notification in writing that the person is flawed in
the execution of attorneyship and his occupational attitudes and
behaviours. Reprimand penalty shall be enforced for the ones that
have received a warning penalty and acted in a manner necessitating
the same penalty within two years or that fail to fulfil the
obligations necessitated by being an attorney or performing
attorneyship to the parties with conflicting interest in any
operation executed before the Office.
c) Temporary retention from attorneyship activity: This shall be the
prohibition of attorneyship activity for duration not less than
three months and not more than one year. Penalty of temporary
retention from attorneyship activity shall be enforced for the ones
who have received a reprimand penalty and acted in a manner
necessitating the same penalty within five years, or utilized his
attorney powers and rights against the power of attorney or utilized
the title, internet domain name or other promotion means of the
Office to cause confusion.
d) Banning of attorneyship: This is the prohibition of attorney
activity for an indefinite period. Banning of attorneyship shall be
enforced for the ones who have received a penalty of temporary
retention from attorney activity.
The authority to give disciplinary penalty for ones committing
actions listed in the second paragraph shall lapse in case the
investigation is not launched within three months after having been
informed of commitment of such actions, and in any case the
disciplinary penalty is not enforced within two years of commitment
of actions requiring penalty.
It is obligatory to give the penalties listed under second paragraph
within 30 days of conclusion of the investigation.
Disciplinary penalties may not be given without acquiring the
defensive statement of the attorney. The attorney shall be deemed to
withdraw his right of defense in case the defensive statement is not
submitted within the duration to be prescribed by the investigator
not less then seven days or at a specified date.
Disciplinary penatlies shall take effect on the date it is decided
and shall be enforced immediately.
It may be applied to administrative justice against the decision for
giving or not giving a disciplinary penalty. The ones that have been
banned from patent attorneyship or trademark attorneyship as a
result of a finalized disciplinary decision may not become a patent
attorney or trademark attorney again.
The Disciplinary Board of Patent and Trademark Attorneys is
comprised of seven
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persons as follows: one member from the Ministry, three members from
the Office, and three members among patent attorneys or trademark
attorneys who have not been penalized with any of the penalties
mentioned under the second paragraph based on a decision of the
Disciplinary Board. Substitute members at the same quantity and
quality shall be determined. All members shall be appointed by the
Minister of Science, Industry and Technology. Before the President
of the Office suggests members to the Ministry to be selected among
patent attorneys or trademark attorneys, he shall obtain the opinion
of two chambers of commerce with the highest number of members and
two attorneyship associations with the highest number of members.
The tenure period of the members of the Disciplinary Board is three
years. If a legal proceeding has been instituted against any member
with a crime mentioned under paragraph (d) of the second paragraph
of Article 30, this member may not attend the meetings until the end
of that legal proceeding and the substitute member shall come to the
meetings instead. The members that would not be able to attend to a
meeting due to a valid excuse shall communicate his excuse before
the meeting date. The membership of a member that fails to attend to
two consecutive meetings without an excuse or who loses its
eligibility of being selected shall be dropped and the substitute
member shall come instead.
Other procedure and rules related to the Disciplinary Board and
determination of commitments requiring disciplinary penalty shall be
regulated with a regulation.”
ARTICLE 183- The following supplementary Article has been inserted
to the Law no. 5000:
“Staff
SUPPLEMENTARY ARTICLE 1- The staff at annex no. (1) list have been
created and supplemented to the relevant section of the appendix
bills of the Decree Law no. 190 of 13/12/1983 on General Staff and
Procedures, whereas the staff at annex no. (2) list have been
cancelled and omitted from the related section of the appendix bills
of the Statutory Decree no. 190.”
The section related to Turkish Patent Institute under list (I)
annexed to Decree Law no. 190 has been amended as Turkish Patent and
Trademark Office, the title in the said annex as vacant and occupied
Trademark Examiner and Patent Examiner positions amended as
Industrial Property Examiner, Assistant Trademark Examiner and
Assistance Patent Examiner amended as Assistant Industrial Property
Examiner.”
ARTICLE 184- The following provisional Article has been inserted to
the Law no. 5000:
“PROVISIONAL ARTICLE 3- The duties of the ones occupying positions
of the President, Vice President and head of department under annex
no. (2) list shall cease on the effective date of this Law and the
ones occupying President, Vice President are assigned to the
positions listed under Annex (1) as President of Turkish Patent and
Trademark Office and Vice President of Turkish Patent and Trademark
Office while others are deemed to be assigned to the counselor
position formed with annex no. (3) list of this Law. When the
counselor positions formed with annex no. (3) list of this Law are
vacated for any reason, they are deemed to be cancelled without any
action.
In case the total net amount (which shall be taken as a fixed value)
of the contract wage of the last month related to the former staff
position of the personnel deemed as assigned to counselor staff as
per this Article as of the date he has been assigned to the new
staff position, fee, indemnity, salary, supplementary indicator,
bonus (net amount corresponding to one month), any raises and
indemnities, office indemnity, representation indemnity, job
indemnity, additional wage, additional payment, incentive payment
and any
85
payments made with similar titles (excluding overtime fee and
additional course fee based on actual work as per the relevant
legislation) exceeds the total net amount of the contract wage of
the new staff position, fee, indemnity, salary, supplementary
indicator, bonus (net amount corresponding to one month), any raises
and indemnities, office indemnity, representation indemnity, job
indemnity, additional wage, additional payment, incentive payment
and any payments made with similar titles (excluding overtime fee
and additional course fee based on actual work as per the relevant
legislation), the difference in between shall be paid as a separate
indemnity without being subjected to any tax or deduction until this
difference is closed. This indemnity payment shall be ceased for the
ones whose staff title has been changed based on that person’s
request and the ones assigned to other institutions with their own
request.
The personnel working as patent examiner and trademark examiner at
the Office on the effective date of this Law shall be deemed as
assigned to the industrial property examiner position; and the
personnel working as assistant patent examiner and assistant
trademark examiner shall be deemed as assigned to the assistant
industrial property examiner position, with their present staff
degrees, without the need to take any action.”
ARTICLE 185- “Industrial design” expression at the first paragraph
of Article 21 of the Law no. 278 of 17/7/1963 on the Foundation of
Turkish Scientific and Technologic Research Authority has been
amended as “design”.
ARTICLE 186- Under the paragraph “2. Patent and utility models.”
sub-clause of paragraph (e) at “I- Production licenses” section of
the tariff no. (8) under the Act of Fees no. 492 of 2/7/1964, the
sentence “by the Institute” has been amended as “by the Office”, the
title “3. Industrial designs” has been amended as “3. Design”;
“Industrial design” expression at (m) sub-paragraph of this
paragraph has been amended as “design”; “Trademark application fee
(for the first three classes” expression at (a) sub-paragraph of “4.
Trademarks” paragraph of the same section has been amended as
“Trademark application fee (for each class)”; “Trademark
registration certification issuance fee” at sub-paragraph (e) has
been amended as “Trademark registration fee”; “Collateral process
registration fee” at sub-paragraph (ı) has been amended as “Pledge
process registration fee”; “International application fee” at sub-
paragraph (l) has been amended as “Fee for notification of
international application”; the title of paragraph “5. Geographical
indications:” has been amended as “5. Geographical signs and
traditional product names:”; “Geographical indication registration
certificate and registry fee” at sub-paragraph (b) of this paragraph
has been amended as “Geographical sign and traditional product name
registration and registry fee”; “geographical indication” expression
at sub-paragraph (c) has been amended as “geographical signs and
traditional product name”, and sub-paragraph (b) of “4. Trademarks”
paragraph has been revoked.
ARTICLE 187- At the Civil Servants Law no. 657 of 14/7/1965;
a) “Assistant Trademark Examiners, Assistant Patent Examiners”
expression at paragraph (11) of sub-clause (A) under the section
titled “Common Provisions” at Article 36 has been amended as
“Assistant Industrial Property Examiners” and the expression of “as
Trademark Examiner, as Patent Examiner” has been amended as “as
Industrial Property Examiner”.
b) “Trademark Examiners” and “Patent Examiners” expressions at
paragraph (ğ) of “A- Special Service Indemnity” section of “II-
Indemnities” part of Article 152 have been revoked and “Industrial
Property Examiners” expression has been inserted in the same
paragraph to come subsequent to “Defense Industry Experts”.
86
c) The expression “Law on the Establishment and Functions of the
Turkish Patent Institute” under the sub-clause eleven of the
paragraph (a) of provisional Article 41 has been amended as “Law on
the Establisment and Functions of the Turkish Patent and Trademark
Office.”
d) Under the paragraph (d) of “I- General Administrative Services
Class” section of Annex no. (I) Annex Indicator List, the expression
“President of Turkish Patent Institute” has been amended as
“President of Turkish Patent and Trademark Office”, under paragraph
(g) “Trademark Examiners, Patent Examiners” has been amended as
“Industrial Property Examiners” and under the Annex no (II) Annex
Indicator List “2. Judicial organs, Dependant and Linked
Institutions and Higher Education Institutions” section “Vice
President of Turkish Patent Institute” has been amended as “Vice
President of Turkish Patent and Trademark Office”.
ARTICLE 188- a) The title of the Law no. 5000 of 6/11/2003 on the
Establishment and Functions of the Turkish Patent Institute has been
amended as “Law on Establishment and Functions of the Turkish Patent
and Trademark Office”, under first paragraph of Article 1 of the
same Law the expressions “Turkish Patent Institute” amended as
“Turkish Patent and Trademark Office”, “TPE” amended as
“TÜRKPATENT”, under paragraph two of same Article “TPE” amended as
“TÜRKPATENT”, under sup-paragraph (a) of the first paragraph of
Article 2 of the Law “a) Institute: Turkish Patent Institute”
amended as “a) Office: Turkish Patent and Trademark Office”, under
sub-paragraph (b) “b) Management Board: Management Board of Turkish
Patent Institute” amended as “b) Management Board of Turkish Patent
and Trademark Office”, under sub-paragraph (c) “c) Advisoary Board:
Advisory Board of Turkish Patent Institute” amended as “c) Advisoary
Board: Advisoary Board of Turkish Patent and Trademark Office”,
under sub-paragraph (d) “d) Presidency: Presidency of Turkish Patent
Institute” amended as “d) Presidency: Presidency of Turkish Patent
and Trademark Office”, under first paragraph of Article 3 of the Law
the expression “Institute” amended as “Office”, under first
paragraph of Article 4 of the Law the expression “Institute” amended
as “Office”, under second paragraph the expression “Institute”
amended as “Office”, under fourth paragraph the expression
“Institute” amended as “Office”, under first paragraph of Article 6
of the Law the expression “to the Institute” amended as “to the
Office”, under sub-paragraph (a) of second paragraph the expression
“Institute’s” amended as “Office’s”, under sub-paragraph (b) of
secnd paragraph the expression “Institute” amended as “Office”,
under sub-paragraph (c) of second paragraph the expression
“Institute’s” amended as “Office’s”, under sub-paragraph (f) of
second paragraph the expression “Institute’s” amended as “Office’s”,
under sub-paragraph (j) of second paragraph the expression
“Institute’s” amended as “Office’s”, under sub-paragraph (l) of
second paragraph the expression “Institute’s” amended as “Office’s”,
under the first paragraph of Article 8 of the Law the expression
“Institute’s” amended as “Office’s”, “to the Institute” amended as
“to the Office”, under the first paragraph of Article 9 of the Law
the expression “Institute’s” amended as “Office’s”, “Institute”
amended as “Office”, under the second paragraph the expression
“Institute” amended as “Office”, under the fourth paragraph the
expression “Institute” amended as “Office”, “Institute’s” amended as
“Office’s”, “at the Institute” amended as “at the Office”, under the
first paragraph of the Article 11 of the law the expression
“Institute’s” amended as “Office’s”, under the first paragraph of
the Article 16 of the law the expression “Institute’s” amended as
“Office’s”, under the sub-paragraph (a) of the first paragraph of
Article 17 of the Law the expression “Institute” amended as
“Office”, under the first paragraph of the Article 20 of the Law the
expression “Institute’s” amended as “Office’s”, under the fifth and
sixth Articles of the Article 23 of the Law the expression
“Institute” amended as “Office”, under the first
87
paragraph of the Article 24 of the Law the expression “Institute”
amended as “Office”, under the first paragraph of the Article 25 of
the Law the expression “Institute’s” amended as “Office’s”, “to the
Institute” amended as “to the Office”, under the second, third,
fourth and fifth paragraphs the expression “Institute’s” amended as
“Office’s”, under fifth paragraph “Institute” amended as “Office”,
under the first paragraph of the Article 28 of the law the
expression “Institute” amended as “Office”, the expression
“Institute’s” amended as “Office’s”, under the first paragraph of
the Article 29 of the Law the expression “Institute’s” amended as
“Office’s”, under the first paragraph of the Article 2 of the Law
the expression “Institute” amended as “Office”. b) Under the Public
Financial Management and Control Law no. 5018 of 10/12/2003, the
list no (II) on Special Budget Administrations section B) on Other
Agencies with Special Budget, the sub-paragraph stating “Turkish
Patent Institute” has been amended
as “Turkish Patent and Trademark Office”.
c) Under the sub-paragraph (c) of the first paragraph of the Article
2 of the Law No.
5147 of April 22, 2004 on the Protection of Integrated Circuits
Topographies, the expression “a) Institute: Turkish Patent
Institute” amended as “a) Turkish Patent and Trademark Office”,
under the sub-paragraph (h) the expression “Institute’s” amended as
“Office’s”, under the third paragraph of the Article 6 of the Law
the expression “to the Institute” amended as “to the Office”, under
the first paragraph of the Article 13 of the Law the expression “is
the Institute” amended as “is the Office”, under the first paragraph
of the Article 15 of the Law the expression “Institute” amended as
“Office”, under the second and third paragraphs the expression “to
the Institute” amended as “to the Office, under the first and second
paragraphs of the Article 16 of the Law the expression “Institute”
amended as “Office”, under the first paragraph of the Article 18 of
the Law the expression “Institute” amended as “Office”, under the
fourth paragraph of the Article 15 of the Law the expression “to the
Institute” amended as “to the Office”, “Institute” amended as
“Office”, under the second paragraph of the Article 21 of the Law
the expression “Institute” amended as “Office”, under the second
paragraph of the Article 22 of the Law the expression “to the
Institute” amended as “to the Office”, under the title and first
paragraph of the Article 23 of the Law the expression “Institute”
amended as “Office”, under the fourth paragraph of the Article 26 of
the Law the expression “Institute” amended as “Office”, under the
title and first paragraph of the Article 30 of the Law the
expression “Institute” amended as “Office”, “to the Institute”
amended as “to the Office”, under the second paragraph of the
Article 31 of the Law the expression “of the Institute” amended as
“of the Office”, under the second paragraph of the Article 37 of the
Law the expression “to the Institute” amended as “to the Office”,
the expression “Institute’s” amended as “Office’s”, under the third
paragraph the expression “Institute’s” amended as “Office’s”, under
the fifth paragraph the expression “by the Institute” amended as “by
the Office”, under the sixth paragraph the expression “Institute”
amended as “Office”, under the first paragraph of the Article 38 of
the Law the expression “Institute’s” amended as “Office’s”, under
the first paragraph of the Article 41 of the Law the expression
“Institute” amended as “Office”.
ARTICLE 189- The first paragraph of the Article 76 of the Law No.
5846 of 5/12/1951 on Intellectual and Artistic Works.
“Concerning the legal proceeding and procedures stemming from the
legal relations regulated by this Law and criminal proceedings
stemming from this Law, the authorized court shall be the courts
indicated in the Article 156 of the Industrial Property Code.”
References
88
ARTICLE 190- (1) References made in other legislation to Turkish
Patent Institute shall be deemed to be made to Turkish Patent and
Trademark Office, Trademark Examiner and Patent Examiner shall be
deemed to be referred to as Industrial Property Examiner, Assistant
Patent Examiner and Assistant Patent Examiner shall be deemed to be
referred to as Assistant Industrial Property Examiner.
Annulled legislation
ARTICLE 191- (1) The sub-paragraph (d) of the first paragraph of
atrticle 4 and subparagraph (e) of the first paragraph of Article 13
of the Law no. 5000 of 6/11/2003 on the Establishment and Functions
of the Turkish Patent Institute shall be annulled.
(2) Article 39 of the Law No. 5147 of April 22, 2004 on the
Protection of Integrated Circuits Topographies shall be annulled.
(3) The Decree-Law No. 551 of June 24, 1995 on the Protection of
Patent Rights, Decree-Law No. 554 of June 24, 1995 on the Protection
of Industrial Designs, Decree-Law No. 555 of June 24, 1995 on the
Protection of Geographical Indications, Decree-Law No. 556 of June
24, 1995 on the Protection of Trademarks and Decree-Law No. 566 of
September 22, 1995 amending The Decree-Law No. 551 of June 24, 1995
on the Protection of Patent Rights shall be annulled.
Implementation of the provisions of Decree Laws No. 551, 554, 555
and 556
PROVISIONAL ARTICLE 1- (1) National and international trademark and
design and geographical sign applications filed at the Institute
before the date of publication of this Code shall be concluded in
accordance with the provisions of the legislation in force at the
time of filing the application. However, geographical sign
applications filed at the Institute before the publication date of
this Code but not having been announced yet, shall be published in
the Bulletin without prejudice to the provisions of the annulled
Decree Law No. 555 concerning period of opposition.
(2) National patent and utility model applications filed before the
date of publication of this Code shall be concluded in accordance
with the provisions of the legislation in force at the time of
filing the application. In concluding the patent of addition
applications filed after the date of entry into force of this
provision, while converting the patent of addition application or
patent of addition into an independent patent application or a
patent, the provisions of the legislation in force at the date of
filing of the main patent application shall apply. While converting
a patent granted without examination into a patent with examination,
changing a patent application into a utility model application or a
utility model application into a patent application, invalidating
patent and utility models, the provisions of the lgislation in force
a the date of aaplication shall apply. Patent applications and
utility model applications filed via international or regional
agreements, which entered into national phase before the date of
entry into force of this provision, shall be concluded in line with
the legislation provisions in force at the date of entry into
national phase.
(3) The provisional Article 4 of the annulled Decree Law No. 551
shall continue to apply to the patents that are within the scope of
the same Article.
(4) For patents and utility models granted in line with the previous
legislation provisions, the provisions of this Code shall apply
except for the Articles 99, 138, 144, fifth paragraph of the Article
113 and eighth paragraph of the Article 121.
Implementation of the existing regulations
PROVISIONAL ARTICLE 2- (1) Until the regulations foreseen in this
Code enter into force, the provisions that do not violate this Code
shall continue to apply.
Destruction of Infringing Goods
89
PROVISIONAL ARTICLE 3- (1) Due to the crimes committed before
1/1/2009, persons who were sentenced by the enforcement of annulled
Decree Laws No. 551, 554, 555 or 556 for the confiscation of
infringing goods and final verdict not having been enforced yet;
without consideration of the goods being preserved by the custodial
office or the plaintiff or having been trusted to a third party for
preservation under the Law No. 5271 of 4/12/2004 on Penal Procedure,
the public prosecutor’s Office located within the region of the
court that gave the verdict shall issue a notification explaining
the consequences. Such persons shall be notified of their right to
request within one month for the returning of such goods by applying
to the court. In case no request for returning is made by the owners
within this duration or if the goods are not collected within one
month of the court’s decision for returning, the court that gave the
decision shall decide on the destruction of the goods upon request
of the public prosecutor’s Office. The decision on destruction shall
be sent to the public prosecutor’s Office for immediate enforcement.
(2) For the persons, who had been sentenced with the criminal
provisions of the annulled Decree Laws No. 551, 554, 555 or 556 with
a final verdict for returning of the goods and who have not
collected their goods before the date of entry into force of this
Article, although there is a decision by the court for returning
such goods, without consideration of the goods being preserved by
the custodial office or the plaintiff or having been trusted to
another person for preservation according to Article 132 of the Law
on Penal Procedure, the public prosecutor’s Office located within
the region of the court that gave the verdict shall ex-officio issue
a notification explaining the consequences and are asked to collect
the goods within one month. In case the goods are not collected
within this duration, the court that gave the decision shall decide
on the destruction of the goods upon request of the public
prosecutor’s Office. The decision on destruction shall be sent to
the public prosecutor’s Office for immediate enforcement.
(3) The procedures of destruction under this Article shall be
performed under the chairmanship of the public prosecutor by a
committee comprised of the custody officer and two court clerks and
a report shall be prepared. It shall be decided by the judiciary
commissions to identify which court clerks will take place in the
committee. No payment shall be made to the owner of the goods that
are destroyed. Destruction costs shall be covered by the Treasury on
the condition that they are collected from the owner of the goods as
judiciary fees.
Authority of cancellation exercised by courts
PROVISIONAL ARTICLE 4- (1) Until the Article 26 enters into force,
the authority of cancellation, shall be exercised by the courts in
line with the procedure and rules in the said Article.
(2) The cancellation proceedings ongoing at the courts on the date
of entry into force of Article 26 shall be concluded by the courts.
(3) The decisions given by by courts in line with the provisions of
this Article shall be ex-officio sent to the Office upon
finalization.
Renewal requests
PROVISIONAL ARTICLE 5- (1) Until the entry into force of the second
paragraph of Article 23 and the fourth paragraph of Article 69, the
relevant provisions of the annulled Decree Law No. 554 and 556 shall
apply concerning renewal requests.
Ongoing legal proceedings
PROVISIONAL ARTICLE 6- (1) The specialized courts established in
line with the; Article 146 of the Decree Law No. 551,
Article 58 of the Decree Law No. 554,
Article 30 of the Decree Law No. 555,
90
Article 71 of the Decree Law No. 556,
that are annulled with this Code shall be deemed as the courts
established with the first paragraph of Article 152 of this Cose and
the ongoing legal proceedings at these courts shall continue.
Entry into force
ARTICLE 192- (1) This Code’s;
a) Article 26 shall enter into force after seven years from the date
of publication,
b) The provisions regarding the period of making renewal requests
regulated with the
second paragraph of Article 23 and fourth paragraph of Article 69
and the provisions related to the obligation of using emblem
regulated with Article 46 shall enter into force after one year from
the date of publication,
c) Other provisions shall enter into force on the date of
publication.
Enforcement
ARTICLE 193- (1) The Council of Ministers shall enforce the
provisions of the Code.
91
THE IMPLEMENTING REGULATIONS UNDER THE
DECREE-LAW NO 551 PERTAINING TO THE PROTECTION OF PATENT RIGHTS
IN TURKEY (obsolete)
PART ONE
Object, Scope, Foundation and Definitions
Article 1 - The object of this Regulation is to
protect the inventions by means of granting Patents or Utility Model
Certificates in order to encourage the inventive activity, and
contribute to the realization of technical, economic and social
development.
Scope
Article 2 - This Regulation encompasses the
principles, the rules and the conditions for issuing Patents or
Utility Model Certificates to inventions found to be appropriate for
protection within the industrial property rights.
Legal Foundation
Article 3 - This regulation has been prepared
based on the provisions of The Decree-
Law No 551 (obsolete) Pertaining to the Protection of
Patent Rights.
Definitions
Article 4 - For the purposes of this Regulation
the following shall mean;
: Search report on the state-of-the-art,
PART TWO Formalities with Respect to Patents
SECTION ONE
Patent Application and Physical Requirements
Patent Application and Annexes
Article 5 - It is necessary to file an
application with the following elements in order to obtain a patent:
a) application petition,
b) description specifying the invention,
c) claim or claims with respect to the elements
of the invention for which protection is requested,
d) drawings referred to in the description,
claim or claims, e) abstract,
f) receipt for the payment of the application
fee.
The amount of the application fee is indicated
in the Schedule of Fees. For the validity of a patent application
the application fee as prescribed in the Schedule of Fees must be to
paid at the time of filing the application or at the latest within
seven days of the filing of the application without the obligation
of any further notice. Where the application fee has not been paid
within this period, the application shall be deemed to have been
withdrawn. Under such circumstances, the application shall be deemed
not to have had any validity from the outset.
The fee for permitting one month for the late
filing, at the Institute or at the receiving office authorized by
the Institute, of the Turkish translations of the description, claim
or claims and the abstract submitted in English or French or German
as specified in the Article 42 of the Decree-Law shall be prescribed
in the Schedule of Fees. In case of failure to file the Turkish
translation within the specified period and the non-payment of the
fee prescribed in the Schedule of Fees the application shall be
rejected. The rejected application shall be deemed not to have had
any validity from the outset.
According a Filing Date
Article 6 - A patent application shall be
accorded a filing date as of the date, hour and minute when the
elements specified in subparagraphs a,b,c,d, and e of Article 5 of
this Regulation have been submitted at the Institute or at the
office authorized by the Institute.
Application Petition
Article 7 - The application petition samples of
which are hereby attached as Annexes 1 and 2 of this Regulation
shall contain the following:
a) title of the invention,
b) information concerning the applicant or the
applicants : name, nationality, address, postal code, telephone
number, fax number, country,
c) if an agent is appointed, information
concerning the agent: name, nationality, address, postal code,
telephone number, fax number, country,
d) reference number of the applicant or the
agent,
e) if priority is claimed, information with
respect to the application on which the priority is based: country
of the application, the date and the number,
f) information concerning the inventor: name,
nationality, address,
g) where the applicant is not the inventor,
declaration concerning how the right to apply has been obtained,
h) where the application is related to an
earlier dated patent or a utility model application or a Patent or
Utility Model Certificate, information concerning the earlier
application or the Certificate: date, number, divisional
application, patent of addition,
i) number of the pages of the description, the
abstract and the drawings, number of the claims,
j) the date and the signature of the applicant
or the agent, k) class(s) code(s) under the international
classification.
Description
Article 8 - Description is a written statement
explaining the invention thoroughly and in the best way possible.
Description discloses all of elements of the invention without
concealing anything of the subject matter. Description must be
drafted explicitly and in sufficient detail that would enable a
person skilled in the related technical field of the subject matter
to carry out the invention, and should be composed of the following
sections:
a) Title of the invention: The description
shall be headed with the title of the invention as indicated in the
petition. Title of the invention describes the invention and does
not contain terms in the nature of a trademark. Preferably it is
made up of between 2 to 7 words .
b) The technical field to which the invention
relates and the state-of-the-art: It states the technical field to
which the invention relates. Both local and international similar
inventions are described in detail in order to enable the
examination, searching and understanding of the invention.
Furthermore, it describes in detail the differences between the
invention for which protection is sought and the other patents
granted in other countries to enable comparisons by referring to the
relevant literature. The state-of-the-art is described insofar as it
is known to the applicant that would be useful in the examination,
search and understanding of the invention, and preferably documents
relating to the prior art are indicated.
c) Technical problems to be solved by the
invention: The technical problem or problems intended to be solved
by the invention are described. This section discloses the technical
problem and its solution in a comprehensible manner even if not
explicitly referred to as a technical problem, and it states, if
any, the advantages of the invention by referring to the state-
of-the-art.
d) Explanation of the drawings: If any, each
drawing is explained briefly, the numbers and the titles of all the
parts as shown in the drawings are described,
e) Explanation of the invention: In this
section the invention is described by referring, if any, to the
drawings. While describing the parts and their functions, the
numbers relating to the figures are indicated in parentheses. In
this section the invention is disclosed in detail such a way without
leaving any doubt and without leading to any misunderstandings.
None of the information concerning the
workings, operation and other technical features should be withold
from disclosure. Everything concerning the ınvention for which the
protection is sought is disclosed very extensively in order to
realize a widespread dissemination of the information with respect
to the invention.
f) The mode of invention’s industrial
application: This section describes the manner in which the
invention is to be exploited in the industry. Subjective evaluations
and exaggerated declarations are to be avoided.
Claim or claims
Article 9 - An application may contain one or
more claims. Claim or claims define the
elements of the invention for which the
protection is sought.
Every claim should be clear and concise. Claim
or claims are based on the description. Claim or claims cannot
extend beyond the contents of the invention as it is disclosed in
the description.
Claims are formulated in sufficient number to
indicate the elements of the invention in detail taking into
consideration the principle inventive idea. The claims are numbered
consecutively.
In the claims, invention cannot be defined as a
desired objective to be attained.
Claims cannot be explained by relying on
references to the description and the drawings, and cannot be
designated by references such “ as described in the .........part of
the description” or “ as shown in figures ........ of the drawings”.
Where the application contains drawings, the
technical characteristics mentioned in the claims shall be followed
by marks referring to these technical features. When marks are used,
they shall be given in parentheses.
In an independent claim all of the principle
features of the invention must be stated.
An independent claim may be followed by one
more dependent claims where necessary in order to indicate clearly
the technical attributes of the invention.
A dependent claim must contain all of the
features of the claim it depends upon. If possible, a reference
should be made to the independent claim at the beginning when
starting to state the depending claims and the supplementary
features desired to be protected should be described. All dependent
claims, referring to an earlier claim or claims, should be grouped
as much as practically possible.
Claim or claims shall contain a section which
describes the technical features of the invention which are
necessary for the definition of the claimed subject matter, but
which when in combination with the section that describes in a
concise manner the technical features described for protection, by
utilizing such words as “ characterised by”, “characteristic of”.
Drawings
Article 10 - Where the description of the
machine, equipment, product or the process which is the subject
matter of the invention require drawings, such drawings shall be
prepared as described below.
Flow charts and diagrams are accepted as
drawings.
Drawings shall not contain any text, however
when it is indispensable for clarification a single word or words
such as water, steam, open, closed, AB section, or short expressions
as in the case of electric circuits, block diagrams or flow charts
may be used to enhance the understanding.
Figures, important parts and sections are
numbered consecutively in the sequence as they appear in the
description.
Unless it is essential with respect to the
invention measures are not given on the drawings. In exceptional
cases where the measurements are given technical drawing rules shall
be followed.
Drawings shall be rendered in permanent black
ink with well defined lines and dense and dark strokes without using
any colours.
Cross sections shall be depicted with slanted
lines which should not impair the visibility of the reference signs
and the main lines of the figure.
The scale of the drawings and the clarity of
their manner of depiction shall be such to enable all details to be
distinguished without difficulty even when the photographical
reproduction of the drawing is reduced to a two-thirds size.
All lines in the drawings are to be drawn with
the use of drawing instruments.
The height of the numbers and letters can not
be less than 0.32 cm. When lettering the drawings, with respect to
their technical fields Latin and Greek alphabets shall be used.
A single page may contain several figures.
Where a single complete figure is made up of the figures depicted on
two or more pages, the figures on the several sheets shall be
arranged so that the complete figure can be assembled by bringing
the sheets together without concealing any part of any one of the
figures appearing on different sheets.
The different figures on a page or pages shall
be presented clearly separated from one another preferably in an
upright position and without leaving empty space. Where the figures
are not placed in an upright position, they shall be presented
sideways with the top of the figures being placed at the left side
of the sheet.
Reference signs which are not used in the
description shall not be mentioned in the drawings, and reference
sings which are not used in the drawings can not be mentioned in the
description.
Where reference signs are used, the same
features shall be denoted by the same reference signs throughout the
application.
Where a large number of reference signs are
used in the drawings, a separate sheet shall be attached listing all
of the reference signs and the features denoted by these signs.
The total number of drawing pages and the
relevant page number shall appear on each page of the drawings.
The Abstract
Article 11 - The abstract serves only the
purpose of supplying technical information. It cannot be used for
other purposes, and can not in particular be used for the
interpretation of the scope of the protection sought. The abstract
cannot in particular be used for defining the scope of protection
and the state-of-the-art.
The abstract, being the summary of the elements
as disclosed in the description, the claims and if any the drawings,
shall contain the title of the invention, and shall denote the
technical field to which the invention relates, and it shall be
drafted in such a way to give a clear understanding of the technical
problem, the essence of the solution of the problem to which the
invention aims at and the principle use or uses of the invention.
Where it is necessary, the chemical formula
which best characterizes the invention among all of the formulae
contained in the application, shall be stated in the abstract.
The abstract shall be brief and concise as much
as the disclosure enables. Preferably it shall be between 50 to 100
words.
The abstract shall not contain declarations on
the supposed merits or the value of the claimed invention or of the
speculative applications.
Each important technical characteristic
mentioned in the abstract and depicted by a drawing shall be
followed by a reference sign, and this sign shall be placed between
parentheses.
Document Evidencing the Payment of the
Application Fees
Article 12 - The application fee and the duty
must be paid on the application date or latest within seven days of
the application date without the need of any further notice and the
original receipt evidencing the payment of the relevant duty and fee
has to be lodged at the Institute.
Priority Documents
Article 13 - Where a priority has been claimed,
a copy of the priority document obtained from the country of the
receiving office of the earlier application giving rise to the
priority and the Turkish translation of the section containing the
identifications must be lodged at the filing of the application or
within three months of the filing date of the application.
Where the documents as referred hereabove are
not lodged within the prescribed period the application shall be
processed as having no priority.
Terminology and Signs
Article 14 - The following terminology and
signs shall be used in an application. A
consistent use shall be made of the terminology
and sings.
a) Units of weights and measures shall be
expressed in metric system or if first expressed in a different
system shall also at the same time be expressed in the metric
system.
b) Temperatures shall be expressed in Celsius
degrees or if first expressed in a different system shall also at
the same time be expressed in Celsius.
c)The international rules shall be followed in
using indications for heat, energy, light, sound and magnetism, and
also for mathematical formulae and electrical units. For the
chemical formulae, the atomic weight, molecular formulae and symbols
in general use shall be utilized.
d) As a rule only the generally accepted
technical terms, signs and symbols should be used.
Unity of Invention
Article 15 - Those applications which do not
comply with the provisions of the first paragraph of Article 45 of
the Decree-Law, upon the request of the Institute shall be divided
into separate applications.
Institute shall allow the applicant six months
for making the necessary alterations.
Divided Applications
Article 16 - Each separate application stemming
from an application divided in accordance with Article 15,
conditional to staying within the scope of the original application,
shall be accorded the filing date as of the filing date of the
original application. Where a priority has been claimed, the
priority right shall extend to the divided applications.
Convention Priority
Article 17 - Priority rights on the basis of
the Paris Convention can be enjoyed only
upon request.
The twelve month period for claiming priority
shall start from the date of filing of the first application, the
day of filing is not included in this period.
If the last day of the period is an official
holiday in Turkey or has coincided with a day when the Institute is
closed for receiving applications, the period shall be extended
until the end of the working hours of the next day.
PART TWO
Physical Characteristics of the Documents to be
Submitted at Filing
Number of Copies
Article 18 - The documents to be submitted to
the Institute shall be filed as:
a) application petition, one copy b)
description, three copies
c) claim or claims, three copies d) drawings,
three copies
e) abstract, three copies
Fitness for Reproduction
Article 19 - All elements of the application,
namely the application petition, the description, the claim or
claims, the drawings and the abstract shall be presented in such a
manner that would allow direct reproduction of multiple copies by
photography, electrostatic processes, photo offset and microfilming.
The sheets shall not be folded and shall be
free of holes and creases.
Only one side of each sheet shall be used.
Each element of the application, namely the
application petition, the description, the claim or claims, the
drawings and the abstract shall start on a new page.
All sheets of the application shall be bound
together in such a way that would allow easy perusal and also allow
for easy separation and rejoining of the sheets for reproduction
purposes.
Size of the Sheets
Article 20 - All the elements of the
application, namely the application petition, the description, the
claim or claims, the drawings and the abstract shall be prepared on
A4 ( 29.7 cm X 21 cm) size sheets.
Margins
Article 21 - The minimum margins of the sheets
containing the description, the claim or claims and the abstract
shall be 2 cm from the top, 2.5 cm from the left, 2.5 cm from the
right and 2 cm from the bottom; the recommended maximum margins
shall be 4 cm from the top, 4 cm from the left, 3 cm from the right
and 2 cm from the bottom.
For the sheets containing the drawings, the
usable space shall not exceed 26.2 cm x 17.0 cm. The sheets shall
not contain frames around the usable or used surface area. Minimum
margins are 2.5 cm from the top, 2.5 cm from the left, 1.5 cm from
the right and 1.0 cm from the bottom.
Numbering of Pages
Article 22 - All pages of the abstract, the
description, claim or claims shall be
numbered in consecutive numerals.
The numbers shall be centered either at the top
or the bottom of the sheet.
Numbering of Lines
Article 23 - Every fifth line of each sheet of
the description and each sheet of the claims
shall be numbered. The numbers shall be placed
in the right half of the left margin.
Writing of the Text
Article 24 - The application petition, the
description, the claims and the abstract shall
be typed or printed by a computer.
When necessary only graphic symbols and
characters, chemical or mathematical formulae, certain characters of
the Chinese and the Japanese language may be written by hand or
drawn.
The text shall be typed or printed in 1.5
spacing.
All of the contents of the text shall be typed
in a dark permanent color, using characters the capital letters of
which are not to be less than 0.21 cm high.
Drawings, Formulae and Tables Contained in the
Text
Article 25 - The application petition, the
description, the claims and the abstract shall
not contain drawings.
The application petition, the description, the
claims and the abstract may contain chemical or mathematical
formulae.
The description and the abstract may contain
tables; claim or claims may contain tables only if it is helpful
with respect to the subject matter of the claim.
If the tables and chemical or mathematical
formulae cannot be satisfactorily placed in an upright position on
the sheet, they may be placed sideways on the sheet. On pages where
the tables and chemical or mathematical formulae are presented
sideways, placing is to be done such that the tops of the tables or
formulae are at the left side of the sheet.
SECTION THREE
Examination of the Application as to Compliance
with the Formal Requirements
Article 26 - Upon the filing date of an
application becoming final, the Institute shall examine the
application as to compliance with respect to formal requirements as
specified in Articles from 42 to 52 of the Decree-Law and Articles
5, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of this Regulation, and with
respect to physical characteristics as specified in Articles from 18
to 25.
The Institute shall examine the subject matter
of the application with respect to compliance with Articles 6 and 10
of the Decree-Law to determine whether or not it is in the scope of
non-patentable subjects and inventions, and whether it is
exploitable in industry. Where, the Institute finds that the
application clearly and without doubt lacks novelty or lacks
features of industrial applicability the applicant is allowed three
months for submitting his observations.
The Institute after reviewing the opinions of
the applicant shall come to a final decision. Where the decision is
negative, the Institute shall reject the application and submit the
justifications of the reasonings for rejection.
Where the examination reveals that within the
provisions of Article 53 of the Decree Law the application has
deficiencies with respect to formal requirements or that the subject
of the invention is in the scope of non-patentable inventions, the
examination is suspended and the applicant is requested to remedy
the deficiencies or to submit his objections to the Institute within
three months.
The applicant, at this stage of the procedures,
may amend the claim or the claims or divide the application into
further divisional applications.
The Institute shall reject the application in
total or in part with respect to claim or claims where the objection
to the Institute’s decision on non-patentability has not been
accepted or the deficiencies have not been remedied in conformity
with the provisions of this Regulation.
Where at the end of the examination under the
provisions of this Article, no deficiency is found with respect to
formal requirements or that the deficiencies have been remedied
within the provisions of this Regulation, the applicant shall be
notified according to the provisions of the third paragraph of
Article 56 of the Decree-Law that a request should be filed for the
execution of the state-of-the-art search, unless such request had
not been filed earlier, within one month of the receipt of the
Institute’s notice.
Where during the examination of the patent
application, the invention for which patent is requested undergoes
partial or total changes, the filing date shall become the date on
which such changes are filed.
Publication of the Application
Article 27 - The Institute shall publish the
application in the Bulletin at the end of the
18th month period from the filing date or if
priority is claimed from the date of priority.
The published applications are periodically
announced in the Bulletin. The publication shall contain the
following elements:
a) application date and number,
b) the applicant’s name, nationality and
residential address, c) the name, nationality and address of the
inventor,
d) if appointed, the name and address of the
agent,
e) title of the invention,
f) the country, date and number of the
priority,
g) class(es) code(s) of the invention,
h) abstract,
i) description,
j) claim or claims
k) drawings.
Request for Carrying out the Sate-of-the-art
Search
Article 28 - The applicant shall request from
the Institute, within 15 months of the filing date of the
application or of priority date if priority is claimed, that the
state-of-the-art search should be carried out, and shall pay the
prescribed fee in the Circular of Fees within three months of the
request date.
Where the period specified in the first
paragraph of this Article has expired at the time of the
notification provisioned in the sixth paragraph of Article 54 of the
Decree-Law, the applicant shall file the request for search on
state-of-the-art within one month of the receipt of the
notification.
Where the applicant does not file the request
for search on the state-of-the-art as provisioned in this Article or
does not pay the relevant fee the application shall be deemed to
have been withdrawn.
A request for search on the state-of-the-art
with respect to a patent-of-addition application may be filed only
if such request is filed simultaneously with the filing of the
request for the main patent application or that a search has been
carried out or request has been filed with respect to the previous
patent-of-addition applications. The provisions from the first to
the fourth paragraphs of this Article shall also apply with respect
to patent-of-addition.
Inability of Conducting the Search Report due
to Insufficiency
Article 29 - If the insufficiency of the
description or the claim or claims, has resulted in the inability of
drafting the search report, three months shall be allowed for
remedying the insufficiency. Where the insufficiency is not remedied
within these periods the application shall be rejected. In case of
partial insufficiency, the search report shall be prepared for the
claim or claims which are sufficient enough.
Observations within the System for Granting
Patents Without Examination
Article 30 - Third parties, within six months
of the publication of the search report as provisioned in Article 60
of the Decree-Law, may submit their observations to the Institute
with the following particulars cited herewith:
a) the date and number of the bulletin in which
the related application has been published,
b) documents evidencing the observations,
c) the name and address of the party submitting
the observation.
Oppositions within the System for Granting
Patents with Examination
Article 31 - Third parties, in accordance with
Article 62 of the Decree-Law may submit their objections to the
search report within six months of the publication of the search
report. The following particulars cited herewith shall be enclosed
with the opposition.
a) the date and number of the bulletin in which
the related application has been published,
b) documents evidencing the opposition,
c) the name and address of the party submitting
the opposition.
Request for Examination and the Payment of Fees
Article 32 - Upon the publication of the search
report in accordance with the provisions of Article 57 of the
Decree-Law and within the 6 month period of the publication date,
the applicant shall file, in order to obtain a patent with
examination, a request at the Institute for the substantive
examination as to determining that the invention being sufficiently
defined is a novel invention and involves an inventive step.
Before the commencement of the examination, the
third party opposition period of six months has to expire, and the
fee prescribed in the Circular of Fees should be paid. The
examination fee may be paid anytime within the period as specified
above. Where the request for examination has not been made or the
fee has not been paid the application shall be evaluated and
processed within the system for granting of patents without
examination.
Converting a Patent Application into an
Application for a Utility Model
Article 33 - The applicant, subject to
complying with the following conditions, may request that the
subject matter of the application be protected by the grant of a
utility model certificate.
a) The request, under the system of granting
patent without examination, may be filed latest by the termination
of the period specified in the first paragraph of Article 60 of the
Decree-Law for the submission of observations concerning the search
report.
b) The request, under the system of granting
patent with examination, may be filed until the expiry of the
periods specified in the fourth paragraph of Article 62 of the
Decree-Law for the filing of observations or objections submitted in
response to the examination conducted by the Institute.
The protection afforded, as a result of the
conversion, to the subject matter of a patent application within the
scope of utility model certificate shall be valid as of the filing
date of the first application or if priority has been claimed as of
the date of priority.
The Institute, following the examination
concluded in accordance with Article 54 of the Decree-Law and
Article 26 of this Regulation, may propose the applicant to consider
converting the patent application into an application for a utility
model certificate. The applicant is free either to accept or to
reject this proposal. Where the applicant does not respond to the
Institute’s proposal of change with a request of conversion, the
proposal shall be deemed to have been rejected. In such a case, the
proceedings with respect to processing the subject of application,
shall continue within the framework of patent granting procedures.
Where the applicant requests a conversion for
obtaining a utility model certificate instead of a patent, the
applicant shall be notified that the application shall be processed
as being converted into a utility model application and shall be
requested that the necessary documents to be submitted thereof. The
applicant shall be allowed three months for the filing of such
documents.
Where the applicant fails to submit the
documents requested within the prescribed period, the request for
conversion shall be deemed not to have been made and the application
shall be processed as a patent application.
The Institute’s decision, reached subsequent to
the publication of the application, shall also be published in the
bulletin.
Inspection of the Patent Application Files
Article 34 - The file relating to a patent
application or a patent may be inspected after the publication of
the application within the constraints and under the surveillance of
the Institute personnel as specified below.
a) Inspection may only be done within the
premises of the Institute.
b) Inspection may not extend to the Institute’s
internal communications.
c) The identities of the third parties who have
requested inspections may not be
revealed.
d) Inspection may not extend to documents and
communications related with the
compulsory licenses and employee’s inventions.
e) The identities of those inquiring to find
out whether the annual fees have been paid
are not revealed.
f) The identities of the requesting parties and
the contents of their requests for
inspection of the patent application or patent
files may not be revealed.
PART THREE
Patent Application and Transactions upon
Patents
Contractual License
Article 35 - The right to exploit a patent
application or a patent may be subject to
licensing valid for a part or whole of the
territory within the national boundaries.
An application with the following particulars
have to be filed at the Institute for the recording of the license
contract in the Patent Register.
a) a petition,
b) license contract signed by the parties,
signatures of which to be authenticated,
c) document evidencing that the official duty
and the fee prescribed in the Schedule of Fees have been paid,
d) power of attorney.
The fee specified in the Schedule of Fees have
to be paid before the recording of the license contract in the
Patent Register.
Offer for Licensing by the Proprietor of the
Patent
Article 36 - Where the proprietor of a patent
is not making use of the patent in accordance with the provisions of
Article 96 of the Decree-Law, may apply in writing to the Institute
declaring his offer to grant a license to those interested in
exploiting the invention.
Where a change of ownership has occurred due to
a legal action in accordance with Article 12 of the Decree-Law, the
previous offer for licensing shall be deemed to be withdrawn with
the recording of the new patent holder in the Patent Register.
The Institute shall record the offers of
licenses in the Patent Register and publish such offers. The fee
prescribed in the Schedule of Fees have to be paid before such
offers can be recorded in the Patent Register. The offers for
licensing are open to public inspection. The Institute shall take
the necessary measures to enable such inspections.
The owner of the patent may withdraw his offer
at any time provided that no request has been made to the proprietor
of the patent. The withdrawal shall have effect as of the date the
request for withdrawal is filed at the Institute.
Where the offer for licensing has been recorded
in the Patent Register as an exclusive license, the owner of the
patent may not make additional offers to other parties.
Anybody entitled to use the invention under a
license obtained from an offer for licensing shall be considered to
be holding a nonexclusive license, and a license granted under the
provisions of this Article shall legally be considered as a
contractual license.
A request, made after the filing of the offer
for licensing, to record an exclusive license in the Patent Register
shall not be accepted provided that the offer for licensing has been
withdrawn or that the withdrawal has been accepted.
Transferring a Patent Application or a Patent
Right
Article 37 - A patent application or a patent
right may be transferred to another party.
An application with the following particulars
has to be filed at the Institute for the recording of the transfer
in the Patent Register.
a) a petition,
b) the transfer contract signed by both the
assignee and the assignor, and the signatures are to be
authenticated,
c) document evidencing that the official duty
and the fee prescribed in the Schedule of Fees have been paid,
d) power of attorney.
The fee specified in the Schedule of Fees have
to be paid before the recording of the transfer in the Patent
Register.
Inheritance of a Patent Application or a Patent
Right
Article 38 - A patent application or a patent
right may be subject to inheritance.
An application with the following particulars
has to be filed at the Institute for recording in the Patent
Register the change of ownership due to inheritance.
a) a petition,
b) court ruling concerning the inheritance,
c) document evidencing that the official duty
and the fee prescribed in the Schedule of
Fees have been paid,
The fee specified in the Schedule of Fees have
to be paid before the recording of the change of ownership due to
inheritance.
Obligation to use
Article 39 - The owner of the patent or the
person authorized by him is obligated to use the patent.
The obligation to use must be realized by
exploiting the invention within three years from the date of the
publication in the related bulletin of the announcement concerning
the awarding of the patent.
The market conditions shall be taken into
consideration in the assessment of use.
Evidencing of Use
Article 40 - An official document prepared by
the owner of the patent or the person authorized by him, shall
contain a declaration on the exploitation of the patent to evidence
the use before the Institute, and shall be certified by the relevant
professional organizations, chambers of trade or industry or other
related institutions.
No further authentication shall be required of
the certification provided by these organizations.
The certificate of use shall contain, the date
and number of the patent, the title of the invention, the date on
which the use has started, the name, address and the signature of
the person making the declaration, and the date of issue.
The certificate of use shall be recorded in the
Patent Register. The fee specified in the Schedule of Fees have to
be paid before the recording.
The Fee on Requesting the Institute’s Mediation
Article 41 - The fee concerning the request for
mediation as provided in the second paragraph of Article 104 of the
Decree-Law, shall be determined by the Institute separately in each
case within the framework of the evaluation parameters with respect
to the characteristics, the demands and the allegations of the
application.
The Amount of the Guarantee
Article 42 - The amount of the guarantee as
provisioned in subparagraph (c) of the second paragraph of Article
107, shall be determined by the Institute separately in each case
within the framework of the evaluation parameters with respect to
the characteristics, the demands and the allegations of the
application.
The Request for Compulsory Licensing and the
Amount of the Guarantee
Article 43 - The amount of the guarantee as
provisioned in subparagraph (b) of the fourth paragraph of Article
108, shall be determined by the Institute separately in each case
within the framework of the evaluation parameters with respect to
the characteristics, the demands and the allegations of the
application.
Change of Title
Article 44 - Where the holder of a patent
application or of a patent is a legal entity and in the case of any
changes that have occurred in the title, an application with the
following particulars have to be filed at the Institute for the
recording of the change in the Patent Register.
a) a petition,
b) the document evidencing the change of title,
c) document evidencing that the official duty
and the fee prescribed in the Schedule of
Fees have been paid,
The fee specified in the Schedule of Fees have
to be paid before recording in the Patent Register of the changes in
the title.
Certified Copy
Article 45 - Certified copies of the patents
may be requested by the patent holder or by
the third parties. For this purpose the fee
specified in the Schedule of Fees have to be paid.
Recording in the Patent Register and the
Effects
Article 46 - The applications and the patents
are recorded in the Patent Register
including the following particulars.
a) the number of the application,
b) the number of the patent,
c) the application date, hour and minute,
d) the publication date,
e) the number of the publication,
f) the date of issue of the patent,
g) the name, nationality and residence of the
applicant or the patent holder,
h) title of the invention,
i) the class(es) code(s) of the invention,
j) the date, the country and the number of
priority,
k) the number of the claims, number of pages of
the decription and the drawings, l) the period of protection,
m) the certificate of use,
n) annual fees,
o) transfer, licensing, change of title,
execution and other similar acts on rights.
The rights arising from a patent application or
a patent may not be invoked against third parties until they are
duly recorded in the Patent Register.
Periods for the Payment of Fees and the Effects
Article 47 - The fees prescribed in the
Schedule of Fees with respect to a patent application and a patent
shall be paid by the applicant or by the holder of the patent or by
the agent.
The payment periods with respect to the fees to
be paid as prescribed in the Schedule of Fees shall be notified in
advance by the Institute to the applicant or to the holder of the
patent or to the agent.
Where a fee with respect to a specific
procedure has not been paid within the period as specified in this
Regulation, that procedure shall be deemed to have not produced any
effect and outcome as of the date of notification by the Institute
to the applicant.
Where the fees with respect to procedures for
granting of a patent have not been paid within the periods as
specified in this Regulation, the patent application shall be deemed
to have been withdrawn.
Annual Fees
Article 48 - The annual fees as prescribed in
the Schedule of Fees and required for the protection of the patent
application or of a patent shall be paid each year in advance at
maturity during the full term of the protection period.
Where the annual fees have not been paid within
the period as specified in the first paragraph of this Regulation,
they may be paid within the following six month period of maturity
provided that an additional fee as prescribed in the Schedule of
Fees have been paid.
Where the annual fees have not been paid within
the periods as specified in the first paragraph of this Article, the
patent right shall expire as of the last date for the payment of
this fee.
PART FOUR
Applications for Utility Model Certificates
Examination of the Application as to Compliance
with Formal Requirements and Publication
Article 49 - Upon the filing date of an
application for a utility model certificate becoming final, the
Institute shall examine the application as to the compliance with
respect to formal requirements as specified in Articles from 42 to
52 of the Decree-Law and the Articles 5, 7, 8, 9, 10, 11, 12, 13, 14
and 15 of this Regulation, and with respect to physical
characteristics as specified in Articles from 18 to 25.
Where the examination with respect to the
formal requirements reveals a deficiency and that the subject matter
of the application is not in the scope of the provisions of Articles
154 and 155 of the Decree-Law, the processing of the application is
suspended. The applicant is informed of the Institute’s decision and
is requested to remedy the deficiencies or to submit his objections
to the Institute within three months of the notification of the
decision. Where the deficiencies are not remedied or that changes in
the claim or claims are not made or that objections are not filed
within this period the application shall be deemed to have been
withdrawn.
The Institute after reviewing the opinions of
the applicant and of the changes if any, shall come to a final
decision. The Institute’s final decision may be for issuing a
utility model certificate with respect to all or part of the claims.
Where at the end of the examination with
respect to formal requirements no deficiency is found or that the
deficiencies have been remedied, the Institute shall inform the
applicant its decision with respect to the continuation of the
procedures, and the application is opened to public inspection by
publishing of the description, the claim or claims, and if available
drawings in accordance with the provisions of Article 27 of this
Regulation. An announcement is published within the form and
conditions as specified in Article 27 of this Regulation..
Institute’s Decision, Issuance of the Utility
Model Certificate and Publication
Article 50 - Where the applicant has filed his
observation with regard to the oppositions, or having undertaken the
necessary changes or of the lapsing of the period allowed for
placing observations with regard to the oppositions, the Institute
shall decide to grant the utility model certificate without taking
into consideration the oppositions filed by the third parties, and
shall notify the applicant of its decision and request the payment
of the fee specified in the Circular of Fees within three months.
Where the fee has not been paid within three
months of the notification or that a further three month period has
not been requested, the utility model certificate shall not be
issued and the application shall be deemed to have been withdrawn.
Applicability of Provisions Pertaining to
Patents
Article 51 - Where specific provisions
pertaining to utility models are lacking, the provisions pertaining
to patents shall apply also for the utility models provided that
such provisions are not irreconcilable with the characteristics of
the utility model certificates.
PART FIVE Last Provisions
Provisions Repealed
Article 52 - The Implementing Regulations
Pertaining to the Industrial Property Provisions published in the
Official Gazette no 9109 dated 21 September 1955 have hereby been
repealed.
Applications of Previous Provisions
Transitional Article 1 - With respect to the
applications filed before the entry into force of the Decree-Law,
the provisions of the law in force at the date of filing shall
prevail.
The provisions of the Decree-Law shall have
effect for all procedures related with transfer, inheritance and
licensing actions without prejudice to all rights acquired and
recorded in the Register prior to the entry into force of the
Decree-Law.
The provisions of Articles 96, 97 and 98 of the
Decree-Law concerning the obligation of use and the article 72
concerning the patent period shall have effect equally for the
patents granted before the entry into force of the Decree-Law.
The accumulated fees and duties with respect to
patent applications filed before the entry into force of the
Decree-Law shall be paid at their maturity after the entry into
force of this Regulation without the requirement of any further
notification by the Institute.
The Unpaid Fees and Deficient Documents
Transitional Article 2 - Deficient documents
and the fees which have not been paid during the period before
coming into force of the Implementing Regulation relating to the
Decree-Law No 551 and Circular on the Schedule of Fees to be
administered by the Turkish Patent Institute in accordance with
Articles 6/f and 25 of the Decree-Law no 544 Pertaining to The
Establishment and the Functions of the Turkish Patent Institute,
shall be remedied within two months of the coming into force of the
Circular.
Payment of the Annual Fees
Transitional Article 3 - Patents or utility
model certificates having lapsed due to nonpayment of fees and
duties, shall regain their validity upon payment within the six
months period from the date of the notification of the Institute
concerning the accumulated fees of the past years plus an additional
fee in double the value of the due fees accumulated.
Search Reports
Transitional Article 4 - Until such time that
the Institute establishes the organization capable of performing the
state-of-the-art searches, the search work required to be undertaken
in accordance with the Decree-Law shall be performed by the search
institutions having international credentials.
The search reports prepared by the
International Searching Authorities for which the priority is
claimed with respect to an application filed in Turkey shall be
accepted for processing as required by the Patent Cooperation
Treaty.
The fee prescribed in the Circular of Fees for
processing by the Institute of the search reports prepared by the
relevant institutions shall be payable to the Institute with the
filing of the report.
Where the reports have been prepared in a
foreign language other than the English language, the Turkish
Translation shall also be filed with the report.
Entry into Force
Article 53 - This Regulation shall enter into
force on the date of publication.
Execution
Article 54 - The provisions of this Regulation
shall be executed by the President of the Turkish Patent Institute.
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