Relative grounds for refusal in brandregistrations

As an important branch of Industrial Property Rights, brands are the marks that are used in order to distinguish the goods or services of an establishment from the goods or services of other establishments in general.The concept of brand faces us as the most important factor for the companies to maintain competitive superiority under the national or international market conditions.Having been the subject of many national and international regulations, although brands are confused with the concepts of patent, utility model, industrial design, geographical sign, trade title, establishment name in practice, they are indeed different from other legal establishments due to their hallmarks.The applications for brands in Turkish Patent Institute consist of the phases of submitting applications, examination of the application in respect of shape and basis, publishing the brand application, opinions and objections of third parties and lastly registration.In brand applications, Turkish Patent Institute makes a formal examination in terms of the right of application and in terms of the documents necessary for application. Furthermore, if right of first refusal is demanded, an examination by the Institute in terms of right of first refusal comes into question. Turkish Patent Institute (TPE) examines the brand application in respect of the reasons of absolute refusal according to the article 7 of Decree Law on the Protection of Brands Numbered 556 if it doesn?t find any deficiencies in respect of shape. TPE examines the reasons of absolute refusal ex officio. In the event that disagreement is taken to the court, the reasons of absolute refusal are examined by the court ex officio. If the registration application is not found to comply with the article 7 of Decree Law Numbered 556 in partially or completely in respect of the goods or services that are requested to be included under the scope of brand, then the application that includes the request for registering the mark as the brand is rejected completely or partially in respect of the goods or services that are not found suitable.Our study, where the relative grounds for refusal are detailed in the order in the article 8 of Decree Law Numbered 556, has been prepared by addressing both national and international brand legislation provisions and the relevant Supreme Court decisions.Moreover, the amendment especially in the articles 9 and 61 of Decree Law Numbered 556 and of Law Numbered 5833 has been compared with the former regulation in Decree Law Numbered 556.The relevant provisions of Decree Law Numbered 556 have been evaluated along with the Proposed Draft Law on Brands and the Draft Law on Brands, which hasn't entered into force yet.The relative grounds for refusal, which is the subject of our thesis, are a legal right that is granted to third parties by virtue of the fact that their rights are breached claiming that they have a superior and preferred right on the mark of application for registration. Since there is no public benefit in the relative grounds for refusal, just like in absolute refusal, these are not taken into consideration ex officio either by Turkish Patent Institute or by the courts. Both Turkish Patent Institute and courts examine, evaluate and apply their judicial discretion on the subject upon the objection of the relevant person. According to the article 35 of Decree Law Numbered 556, third parties can appeal in accordance with the provisions of the articles 7 and 8 of Decree Law Numbered 556 starting from the date of publication of the brand application and claim that the application has been made with a malicious intent.The provisions in the subparagraph 7/1-b on the same or similar brands which have been registered or a registration application has been made and the subparagraph 8./1a-b are included among the reasons of both absolute refusal and relative refusal. However, there are still some differences between these two provisions. Furthermore, some think that the subparagraph 7/1.ı regarded to be among the reasons of absolute refusal and the paragraph 8/4 regarded to be among the relative grounds for refusal are on the well-known brands while others claim that these two regulations are different as we do. These two considerations have separate specifications. Bringing these two considerations into the agenda with different articles has caused a discussion of the subject in the Doctrine.In our study, the deficiencies in the Legislation and in the Draft Law on Brands have been reflected, the opinions on the problems in practice included in the Doctrine have been narrated and our own opinion has been explained.