Crimes against trademark right and their sanctions

Trademark, which is associated with a property or its protection or a service and can be defined as an indicator having distinguishing characteristics and providing absolute rights to its owner in respect of showing the source or quality of services and goods or as an indicator distinguishing this property or service from other properties and services with foreign origin, is one of the most important elements which provide companies and firms to gain a place in the markets especially with the development of capitalism in 20th century. Since trademark is such an important element, the trademark law has importance also in our county. Because of its importance, it is protected with both Decree law no: 556 and Law no: 5833. Within the scope of these regulations, Constitutional Court has cancelled provisions of the articles 9/I (b), 9/II (b), 61/(a) and 61/(c), which are the regulations having the characteristics of infringement against trademark right in Decree law no: 556, by finding them against Constitution with a decree with the same date. The principle of legality in crime and punishment has been stated as the grounds for unconstitutionality. The effect of these cancellation decisions was postponed for six (6) months because there might be gap in law. There was a problem of how to protect the aforementioned acts in terms of penalty in case that dilatory 6-month validity period is expired. Thus, legislator has accepted Law no: 5833 which changes the related articles of Decree Law no: 556 (Law Date: 21.01.2009, O.G: 28.01.2009, Number: 27124). The crime and punishment provisions have been gathered under one article in art. 61/A in the aforementioned Law no: 5833. Thus, it includes a complete punishment norm and the principle of legality in crime and punishment is provided. Crimes committed against trademark right are stated in article 61/A of Decree Law no: 556. This article faced a fundamental amendment and was written again with Law No. 5833 on 21.01.2009. The main reason for this amendment is the fact that the previous provision included provisions contrary to fifth and provisional first articles of Turkish Penal Code no: 5237. Fundamental amendments have been made related to both material penal code and procedural law owing to Law No: 5833. Key Words: İntellectual Property, Brand Rights, Trademark Rights Infringement Cases of Decree, Brand Crime, No. 556,