The condition of the trademark use obligation as per turkish supreme court decisions

B.C. In 3500 BC, cylindrical seals were used on items in Mesopotamia, and in the 2nd century BC, branding was attempted to be achieved by using special ceramic containers used by olive oil producers in Ancient Greece and various signs engraved on these containers. Later throughout history, the brand continued to be used in different guises in different geographies. In all these uses, natural or legal entities unite in their aim to distinguish their goods and services from other goods and services in the market, to be different and unique, and as a result, to achieve a financial result by creating trust in the target audience. In order to achieve all these purposes, the trademark must be used. Otherwise, the trademark owner will not be able to achieve the benefits he expects from the trademark, and since the relevant trademark is already in use, other people will not be able to use the trademark and will be deprived of the benefits that the brand can bring. People's failure to use the trademarks they have protected in this way, in other words, the unnecessary occupation of trademarks in the registry, will negatively affect economic life, and the hoarding and trading of trademarks that will not be used in order to transfer them later will constitute an obstacle to technological and economic developments. In order to prevent these negative situations, rights holders are obliged to use their trademarks both in European Union law and in our law. The aim of introducing this obligation is to ensure the effective use of registered trademarks and to prevent new rights holders from entering the market by providing grounds for trademark objections against potential applicants of unused trademarks. In our law, while the Industrial Property Law No. 6769 (Law) and the Turkish Commercial Code No. 6102 create the legal framework regarding the obligation to use, the Civil Procedure Law No. 6100 finds its application in the proof of use in the litigation stages. The Law, which contains the basic regulations regarding the use of the trademark, requires certain conditions in order to fulfill the obligation. These conditions are included in the 1st paragraph of Article 9. Accordingly, first of all, the brand must be used seriously. Interpretation of serious use is highly subjective. Expressing serious use as a use in accordance with the functions of the brand will make it a little more objective. The second condition is that the trademark must be used in the goods and services for which it is registered. It will not be sufficient to use the trademark outside the class in which it is registered. The third condition is that the trademark must be used by the trademark owner. Accordingly, the trademark must be used personally by the trademark owner, and use by someone else does not ensure that this condition is met. The fourth condition is the time condition. The trademark must be used within five years from the date of registration or its use must not be interrupted for five years. However, the application of this time requirement may vary depending on the legal consequences of not using the trademark. The last condition is that your trademark must be used within the country where the right is protected. In this respect, trademark right is not a universal right. It is mandatory to use the trademark right within the borders of the country in which it is registered. The cumulative existence of these conditions is required. Otherwise, the obligation to use the trademark right will not be fulfilled. However, as an exception, if the trademark owner has a justified reason for not using the trademark, these conditions will not be required. For example, failure to grant the necessary administrative permissions to put the product on the market will constitute a justifiable reason for not using the trademark. In cases such as this and similar justifiable reasons, not using the trademark may be excused and the consequences of not using the trademark will not come to the fore. In accordance with the 2nd paragraph of Article 9, the use of the trademark with different elements without changing its distinctive character or the use of the trademark on goods or packaging only for export purposes is accepted as use, while according to the 3rd paragraph of Article 9, the use of the trademark with the permission of the trademark owner is also considered as use by the trademark owner. is done. The Law imposes certain legal consequences in cases where the above-mentioned conditions or exceptions are not met, in other words, the obligation to use the trademark is not fulfilled. It would be appropriate to examine these results under two headings: results in the administrative stages and results in the litigation stages. Non-use of the trademark has two consequences in the administrative stages, the first of which is regulated in Article 26 of the Law, T.R. It is the institution of cancellation of unused trademarks carried out by the Turkish Patent and Trademark Office (TÜRKPATENT) of the Ministry of Industry and Technology. Pursuant to the article, if the circumstances specified in the first paragraph of Article 9 are present, the institution decides to cancel the trademark upon request. Article 9 is the basic article regarding the obligation to use the trademark and stipulates that the trademark that is not used will be cancelled. However, in accordance with Article 192, Article 26 is stipulated to enter into force seven years from the date of publication of the Law. Considering that the Law was published on 10.01.2017, Article 26 will be applicable as of 10.01.2024, and the cancellation of the unused trademark may be requested from the Authority after this date. This issue needs to be particularly emphasized because it creates a new field of application and there is no academic review or jurisprudence before it. The second result is the regulation of the second paragraph of Article 19 of the Law. This provision finds its application in objections made to a trademark application citing the 1st Paragraph of Article 6 of the Law. There are basically three parties to object to a trademark application. These are the trademark applicant, TÜRKPATENT and the objector. According to this regulation, if there is an objection to the trademark application, upon the request of the trademark applicant, TÜRKPATENT requests evidence from the objector regarding the use of the trademark subject to the objection, which is claimed to be in danger of confusion. In this case, the objector must prove that he is using his trademark right. If he cannot prove this use with any evidence, his objection to the trademark application will be rejected. Basically, the results in the administrative stages are as follows, but if we need to look at the consequences of not using the trademark in the litigation stages, the first thing that comes to the agenda is the trademark cancellation case. According to provisional article 4 of the law, the cancellation authority is exercised by the courts until article 26, which regulates the cancellation of the above-mentioned unused trademark by the institution, comes into force, and when it comes into force, the cases are concluded by the courts. Accordingly, while the cancellation of trademarks that are not used until 10.01.2024, which is the effective date of the relevant article, can be requested through a lawsuit, cancellation requests after this date must be directed to TÜRKPATENT. The second result in the litigation stages is that proof of use can be put forward as a defense in lawsuits. Proof of use can be put forward as a defense in invalidity and infringement cases. In the invalidity cases to be filed in accordance with the 7th paragraph of Article 25 of the Law (Invalidity cases and invalidity request), the first paragraph of Article 6 (Relative reasons for rejection in trademark registration), the proof of use, which is the provision of the 2nd paragraph of Article 19 (Examination of objection to publication), is excluded. It has been ruled that it can be claimed as i. Likewise, in accordance with the second paragraph of Article 29, proof of use can be put forward as a defense in rape cases. These are the consequences of not using the trademark in the litigation stages. Proof of use poses an important problem in the obligation to use the trademark. Namely, there is no regulation in the Law regarding how to prove the use of the trademark. Only the use of the trademark is obligatory and the consequences related to this obligation are regulated. For this reason, it would be appropriate to determine the criteria for proof of use by examining other regulations (Regulation, Directive, Communiqué) and Supreme Court decisions. In this study, first of all, the conditions sought to fulfill the obligation to use the trademark and the legal ways in the light of the obligation to use will be examined, and then the uncertainty regarding how to prove the use of the trademark encountered in practice will be tried to be eliminated. Key Words: Trademark, Use, Proof of Use, TURKPATENT, Industrial Property