The cumulative protection between intellectual property rights and Unfair Competition Law

In this study, the possibility of cumulative protection between intellectual property rights and unfair competition law in the strict sense is discussed. When intellectual property rights are mentioned, industrial rights and copyrights are understood together in a broad sense. Trademark, geographical indication, design, patent, utility model and traditional speciality guaranteed constitute the subject of industrial rights. Therefore, Industrial Property Law has been prepared to serve the purpose of protecting the subject of industrial rights. The subject of copyright is intellectual and artistic works categorized as scientific and literary works, musical works, works of art and cinematographic works. Therefore, the Law on Intellectual and Artistic Works was established in order to determine and protect the rights of the owners of the works and related rights holders. When intellectual rights are mentioned in a narrow sense, only copyrights are understood. Here, the subject of this study is intellectual rights in a narrow sense namely copyrights. The Law on Intellectual and Artistic Works has been prepared by Prof. Dr. Ernst Hirsch. This Law was passed on 5 December 1951 and then was published in the Official Gazette dated 13 December 1951. Although the Law has undergone various changes in 1983, 1995, 2001 and 2004, it continues to exist. With the enactment of the Law, the rights of the authors of the intellectual and artistic works and the related rights holders are guaranteed. Thus, if the rights of the authors are violated, the question arises whether the protection of intellectual property only or the protection of unfair competition in addition to the protection of intellectual property rights are applied. As the basis of this problem, it has been examined whether the Law on Intellectual and Artistic Works is of a special nature according to the unfair competition provisions. Here, our study subject is whether the Law on Intellectual and Artistic Works is of a special nature according to the unfair competition provisions regulated in the Turkish Commercial Code, and whether intellectual property protection and unfair competition protection can be applied cumulatively in case the rights of the author arising from the work are violated. Within the scope of our study, what should be understood from intellectual and artistic works and the basic principles related to intellectual and artistic works are discussed. After these determinations have been made, different views in the doctrine about whether intellectual property protection and unfair competition protection can be applied cumulatively in case of violation of the rights of the author arising from her/his work were given. Afterwards, by taking these different views into consideration, the intersection areas of unfair competition protection and intellectual property rights protection were determined. In terms of these intersection areas, an answer has been sought separately to the question of whether two different protection methods can find application cumulatively. Finally, procedural problems that will arise if the cumulative application is accepted have been determined and solutions to these problems have been given. The purpose of choosing the cumulative protection between intellectual property and unfair competition law as a study subject is to reach a conclusion by reflecting the different views on this subject in the doctrine. This subject was chosen as a study because intellectual property protection and unfair competition protection leads to different results in terms of statute of limitations, duration of protection and the way in which compensation is calculated. The question of which protection method will be applied is also essential in terms of determining the court in charge of the case. In addition, the presumptions envisaged by the legislator are important for proof, and which means of protection is also important in terms of proof. In this case, the answer to the question of whether only intellectual property protection will be applied in case of violation of the rights of the author arising from his/her work, or whether it is possible to apply for unfair competition protection in addition to intellectual property protection becomes important. In this study, it is aimed to find humble answers to these questions, taking into account the views in the doctrine. In our thesis study, the literature review method was preferred as a method. Because there are many different views in the doctrine in terms of the chosen thesis topic, the most appropriate method is to include all the views in the teaching in terms of explaining the study subject in the best way and reaching the conclusion. Thus, the reader will be able to master all the views put forward on the subject and better analyze the path to the conclusion. In this context, written books, articles, theses and periodical publications were examined in order to explain the views of the doctrine on the subject related to the thesis study. In addition to the views in the doctrine, judicial decisions are included in order to understand the view of the judicial authorities on the subject. International sources and international judicial decisions are included in order to better understand the intersection of unfair competition and copyright. At the end of our thesis, it has been concluded that there is no special provision-general provision relationship between the provisions in the Law on Intellectual and Artistic Works, which regulate intellectual rights, and the provisions on unfair competition in the Turkish Commercial Code. In this case, it has been concluded that in case of violation of the rights of the author arising from her/his work, in addition to the protection of intellectual rights, unfair competition protection will come to the fore if the conditions exist. Thus, it is accepted that cumulative protection is possible between the two protection paths.