In the Turkish Constitution, one of the fundamental aims and duties of the state is “to ensure the welfare, peace and happiness of the individuals and society, and to provide the conditions required for the development of the individual’s material and spiritual existence”. Through this awareness, the state aims to maximize welfare by protecting the creations of the mind.
“The State granted patent privileges as of 1850s for development of local technology and transfer of foreign technology into the country; and enacted the Patent Rights Law as a modern patent law in 1879. In 1871 and 1888, the State issued trademark regulations in order to comply with international trade and protect the rights of entrepreneurs in commercial life. Therefore in XIXth century, the Ottoman Empire had become a country having a law governing copyrights, trademarks and patents, which are the basic elements of intellectual property rights, and transferred its laws and practical experience to Republic of Turkey.”1
Turkey, having made early progress in enactment of trademark and patent laws, has executed the system that protects the appearance characteristics of products and components by means of registration with the Decree-Law Pertaining to the Protection of Industrial Designs dated June 24, 1995. The foundation of the Decree Law was laid on the basis of the Customs Union Agreement. Turkey, having accepted to make necessary arrangements for the protection of intellectual and industrial rights at EU level, has based the Decree Law on Council Regulation on Community Designs, which was a draft at the time.
The aforementioned Decree Law came into force on June 27, 1995 and the first design registration application was filed for the jewelry sector. In the design registration system having an experience of about 26 years, everything fell into place in time, and after several amendments of regulations2, the system took its final form in Book Three of the Industrial Property Code on January 10, 2017.
The rules of unregistered design protection that were not included in the previous legislation have also been specified in the Law. In order to benefit from unregistered design protection, which is preferred for designs that rapidly go out of style, it is sufficient that the design is new and has distinctive character as it is required in registered designs and has been presented to the public in Turkey, and the said unregistered design protection protects the design against copying for 3 years.
While designs were protected, if conditions were suitable, by copyright, unfair competition provisions and trademark before 24.06.1995, Turkish legislation incorporated registered design protection in 1995 and unregistered design protection in 2017 into the system and completed the elements of multiple protection.
Our advice to businesses that intend to benefit from the design protection in Turkey is to protect their designs by way of registration, because the system includes serious sanctions that prevent third parties other than the owner of the registration from manufacturing the design or the product on which the design is applied, its commercial use, possession, or even from being subject of a contract.
Turkish Patent and Trademark Office has started to conduct examination for novelty after 2017. In the determination of the novelty feature, which is one of the basic criteria of protection, the Office tries to determine through research carried out in electronic medium whether the design intended to be subject to registration has been presented to the public before the date of application. However, it is not possible to say that the said research absolutely yields correct results. It is very difficult to keep track of the products presented to the public in the world in the registration systems that adopt the novelty criteria. The reason for including novelty examination into the system is the fact that the same product can be registered on behalf of more than one person due to registration without examination which was previously employed. Invalidation proceedings in Turkey are concluded in about 1 year in Courts of First Instance. However, for this, it is important that the preparation for the case is made by professionals.
Another important development after 2017 is that a design registration request including the intellectual property right of another party is subject to partial or complete invalidation upon an opposition filed by the registration owner. If an intellectual property right of another party is found in a registered and published design and an opposition is filed against it, the relevant part is removed from the visual representation of the design. If the identity of the design is based on someone else’s intellectual property, the registration is completely invalidated. Before 2017, occasionally it was observed that the figures of well-known trademarks were placed in the design as if they were a part of the design and were tried to be registered. The oppositions of the trademark owners were not accepted by the Office at first, and it was advised to file a trademark infringement case before the court. However, the time and economic losses caused by the referral of a case, which would be resolved in a short time and with less cost by the Office, to the court were avoided by the amendments made in the provisions regarding opposition. Therefore, precautions were taken to prevent the infringement of trademark rights through design registration.
In conclusion, provisions relating to the registered or unregistered protection of the designs in Turkey are in parallel with community design applications, whereas the difference originates from the novelty examination. As such, there is a high level of similarity between Turkish and European Union design legislations.
An application that accurately draws the boundaries of protection will reward the designers for their intellectual and material efforts spent for the creation of the design, while at the same time contributing to the happiness of the society.