Earlier rights in trademark law

In this thesis study, in order to understand the Earlier Rights in Trademark Law, which we frequently encounter in practice and do not have clear judgements in Trademark Law, can take different verdict according to each concrete case, and do not have a consensus even in the doctrine of place. While the thesis study is in preparation, Industrial Property Law No. 6769 is accepted; therefore the explanations in the thesis content have been tried to be introduced in order to be evaluated within the framework of the Decree Law No. 556 on the Protection of Trademarks and the Intellectual Property Law No. 6769 in general. The acquisition of the trademark right is possible by "registration" or "by use - with real rights of ownership". Cause of that the trademark right may be obtained in two different ways, conflicts often arise between real or juridical persons who are "holders of the right" of the same brand in two different ways. The issue, which is the starting point of our thesis study, is what criteria will be used to determine the "owner of the trademark right" in such disputes. In practice, infringement cases arise between unauthorized persons who use the undocumented signs such as trade names, company names, internet domain names, etc. based on the old one, and those who subsequently register these signs as trademarks. In addition, the legal status of unregistered signs versus to registered marks in a foreign country has led to many disagreements. The owner of the trademark who did trademark registration or unauthorized persons who use the undocumented signs based on the old one; which one must be protected by the law and that this protection should be evaluated in the frame of bad faith or not has been tried to be resolved in the doctrine and the decisions of the Court of Cassation. In the first part of the thesis study, in the trademark law; we have attempted to explain the rights of real trademark owner, the relationship between the real rightful ownership protection and the limit of the earlier rights' protection principles, and the conflict of real rightful ownership principle. In the second part of the thesis study, in Turkish legislation and international legal provisions; the extent to which unregistered marks constituting the exemption of the registration principle in trademark law are protected by known popularity, goodwill, right of preference, earlier usage, have been examined within the limits of others' copyright or intellectual property rights. In the third part of the thesis study, historical priority of earlier rights between a registered trademark and a registered trade name / company name / domain name / geographical sign or between the registered trademarks in the states which are the member of Paris Convention has been worked on. It has been argued here that the person who had been registered as earlier would be granted by all right or not, regardless of any other conditions; and also in this debate it has been attempted to be evaluated in equity of whether the organization using the trade name / company name / domain name / geographical indication used these rights as "trademarks". Finally, the real rightful ownership, which is the main concept of the thesis study; has been examined within the principle of loss of right through silence, and its conditions by exemplifying doctrine views, national and international case-law. Keywords: Trademark, Real Ownership of Trademark Rights, Priority and Seniority, Usage of The Earlier Rights, Trade Name, Company Name, Unregistered Marks