Use-based priority right in trademark law

As a rule, a trademark right is acquired through registration in Turkey, principle of registration. However, the number of people who use their trademarks without registration can not to be underestimated. The legislator did not completely deprive the unregistered trademarks of protection and legislated the Article 6/3 of the Industrial Property Code no 6769 (SMK). According to that Article, if rights to an unregistered trademark or to another mark used in the course of trade were acquired before the date of application or of priority (if available), the trademark application will be rejected upon opposition of the sign owner. The reason for rejection of this trademark application is the Use-Based Priority Right obtained within the scope of SMK 6/3. In the first chapter of this work, after giving information about the trademark right and trademark types, the principles regarding the acquisition of the trademark right are given and where the Use-Based Priority Right stands in trademark law is shown. In the meantime, it is aimed to reveal Use-Based Priority Right's relationship with other principles regarding the acquisition of the trademark right and aimed to find solutions to various problems related to other principles. After discussing the principles regarding the acquisition of the trademark right, the first part was completed by discussing which system is adopted in our law. When looked at the Article 6/3 of SMK, it is seen that the matter is not very clear and there are various problems in its application. The second chapter of this thesis aims to find solutions to these problems and to clarify the principles of application of the Article. In this context, firstly, it is tried to be determined which of the signs used in the course of trade are included in the scope of SMK 6/3. Secondly, as stated in the preamble of SMK 6/3, the issues such as genuine use of the signs covered by the Article and what should be understood from the genuine use, are discussed. Thirdly, the concepts of 'having rights on the mark' and 'right to prohibit the use of a subsequent trademark' are examined. Finally, the 'having a certain recognition ' condition which was accepted by the doctrine, even though it is not included in the SMK 6/3, is examined. In the third and last chapter of this dissertation, firstly, the rights of the Use-Based Priority Right holder are examined. Following that, the status of the previous unregistered mark against the later trademark which constitutes infringement is evaluated. At this point, the issue of the effects of the earlier rights, which was previously accepted by judicial decisions and which is now subject to lex lata for the first time together with SMK, is evaluated. Later on, the status of the earlier registered trademark against the subsequent unregistered sign is studied. Finally, in the last part of the study, the issue of acquiescence which is the limit of exercising the Use-Based Priority Right, is examined.