Law on intellectual and artistic works
In our country, intellectual property law is regulated by the Law on Intellectual and Artistic Works No. 5846 and the Industrial Property Law No. 6769. It is basically examined in two separate groups as copyright and industrial property rights.
What is a copyright?
Copyright is regulated in article 27 of the Universal Declaration of Human Rights. Copyright is an absolute abstract right, which is born with the production of the work, but has a separate and independent legal value from the object it embodies. It provides the authorization to the owner over the ideas and works of art.
When and how is copyright born?
Since the copyright is an absolute right, even if the work has not been registered, it is a right that belongs to the owner of the work and can be claimed against everyone. This right arises when the work is produced by the owner of the work, and it is protected independently of the physical existence of the work.
However, an effort that stays only at the thought stage, without any physical identity, does not create copyright. A concrete work must have been created for the birth of the right.
“Within the scope of FSEK, it is permitted to save on financial rights on completed works, and it has been deemed as superstitious to make a saving on the financial rights or usage licenses on the works that have not yet been created or completed. (FSEK, art. 48).” Court of Cassation assembly of civil chambers 2019/474 E. , 2020/26 K. 16/01/2020
"Based on the legal definition; There are two elements, objective and subjective, for the protection of an intellectual product as a work within the scope of clause (a) of article 1 / B of Law No. 5846. The objective element is to be included in one of the types of work listed in the law, and the subjective element is to carry the characteristic of its owner. The subject of the right on a work, that is the protection, is not the "idea", but the style of expression (style) that gains an independent feature and takes shape by being determined on a material tool; therefore, it is also necessary to shape (fix) the work on a material. An intellectual effort that remains only at the stage of thought cannot be preserved as a work in accordance with subparagraph (a) of article 1 / B of Law No. 5846, unless it takes a certain form that can be perceived by human emotions. Court of Cassation general assembly of criminal chambers 2017/788 E. , 2020/34 K. 28/01/2020"
Copyrights are divided into four main categories:
1-) scientific and literary works
2-) Music works,
3-) Fine art works,
4-) Cinema works.
What is an Industrial Property Right?
Within the definitions in article 2 of the Industrial Property Law No. 6769, the industrial property right is defined as follows. "Brand, geographical indication, design, patent and utility model"
In the Paris Conventiion on the Protection of Industrial Property Rights that Turkey participated to it on October 10, 1925, in in the first article of the Convention establishes the scope of the protection of industrial property rights in both the subparagraph. Patent, utility model, industrial design, trade marks, trade names, service marks, origin names and indication of origin, and unfair competition prevention considerations are explicitly included to this.
In the lower third paragraph of the same article, it is stated that the concept of industrial rights can be understood in the broadest sense. It has been adopted that protection will be valid not only for industry and trade, but also for agricultural and natural products, the mining industry, and natural products produced from all kinds of agricultural and underground resources products.
Therefore, it is worth mentioning that although the content of the concept of industrial property right is tried to be filled, its scope is suitable for expansion in line with the developing technology and natural resources.
However, the industrial property right can be defined as an intangible right that gives the right owner the right to use the powers such as producing and selling products bearing distinctive names and signs and benefiting from the protections.
What is a Trademark?
Direct definition of the trademark regulated in the First Book of our Industrial Property Law is not made. However, article 4 of the law states as follows. Provided that it enables the goods and / or services of an enterprise to be distinguished from the goods and / or services of another enterprise, which can be displayed by drawing or expressed similarly, including personal names, especially words, figures, letters, numbers, the shape or packaging of the goods, can be published by printing and has been stated that any sign that can be reproduced can create the brand.
The legislator enumerates the absolute reasons for refusal in trademark registration in article 5. The signs that cannot be registered as trademarks are clearly stated. First of all, after it was stated that the signs that are not generally listed in article 4 could not be registered as trademarks, other signs that could be subject to absolute rejection were specifically counted.
The following signs cannot registered as trademarks:
Signs that cannot be trademarks under the law.
Signs that do not have any distinguishing characteristics.
Signs that indicate the type, variety, qualification, quality, quantity, purpose, value, geographical source in the field of trade, or indicate the time when the goods are produced, the time the services are offered, or the other features of the goods or services, exclusively or as the main element.
The same or indistinguishably similar signs with the trademark registered for the same or the same type of goods or services or for which the registration application was made on a previous date.
Signs that contain exclusively or essentially any signs or designations that are used by everyone in the field of trade or are used to distinguish those belonging to a particular profession, art or trade group.
Signs that contain exclusively the shape or another feature of the goods that arise due to the nature of the goods, or that are mandatory to obtain a technical result or that give the goods its primary value.
Signs that will mislead the public in matters such as the nature, quality or geographical source of the goods or services.
Signs to be rejected in accordance with the 2nd repeated article 6 of the Paris Convention.
Signs that are outside the scope of the Paris Convention's 2nd repeating article 6, but are of public interest, other signs belonging to the public in terms of historical and cultural values, as well as signs, emblems or namings that have not been granted permission for registration by the competent authorities.
Signs that contain religious values or symbols.
Signs contrary to public order or public morality.
Signs that consist a registered geographical indication or contain a registered geographical indication.
Situations considered as absolute rejection are evaluated ex officio in the application made to the Turkish Trademark and Patent Institute.
The application is rejected upon objection if:
In addition to the above-mentioned absolute refusal reasons; If it is similar or same to the registered trademark or the previously applied trademark, and if there is the similarity or sameness of the goods or services covered, in the event of a possibility of confusion with the trademark registered or previously applied for, including the possibility of being associated by the public.
The legislator has stated the relative grounds for refusal in the sixth article.
In case of relative refusal, the person claiming to be the right holder must object in accordance with the procedure. Otherwise, it is not taken into consideration ex officio.
ARTICLE 6- (1)Due to the similarity or sameness of a trademark to which registration application has been made with the trademark that was registered or filed in the previous date, and the similarity or sameness of the goods or services covered, if there is a possibility of being confused with the trademark that was registered or the trademark applied for in the previous date, including the possibility of being associated by the public, upon objection, the application is rejected.
(2) The application made by the commercial agent or representative for the registration of the same or indistinguishably similar trademark in his name without the consent of the trademark owner and without a justified reason is rejected upon the objection of the trademark owner.
(3) If a right has been obtained for an unregistered trademark or another sign used during trade before the application date or the priority date, if any, the trademark application is rejected upon the objection of the owner of this mark.
(4) Trademark applications that are identical or similar to well-known trademarks within the context of article 6 repeating article 1 of the Paris Convention are rejected upon objection in terms of the same or similar goods or services.
(5)A trademark registered or registered on an earlier date; due to the recognition level reached in Turkey, in the cases that can provide an unfair advantage, the case of the situations that could harm the reputation of the brand, registration application for the same or similar trademark is rejected upon the objection of the previous trademark owner, regardless of whether the application is made for the same, similar or different goods or services, provided justified reasons are reserved.
(6) If the trademark for which the registration application is made includes the name of the person, trade name, photograph, copyright or any intellectual property right, the application is rejected upon the objection of the right owner.
(7) Trademark application that is the same or similar to the co-trademark or guarantee trademark and contains the same or similar goods or services, made within three years following the expiry of the protection period due to non-renewal of the co-trademark or guarantee trademark; is rejected upon the objection of the previous right holder.
(8) Trademark application that is the same or similar to this trademark and contains the same or similar goods or services, made within two years after the protection period of the registered trademark is not renewed, Upon objection by the previous trademark owner, is rejected provided that the trademark has been used within this two-year period.
(9) Trademark applications made in malicious faith are rejected upon objection.
What are the Documents Required in Trademark Application?
Application for trademark registration is made to the Turkish Patent and Trademark Office. The applicant can apply directly or through a trademark attorney. Real or legal persons have the right to apply.
The application procedure is specified in the regulation.
The following should be included in the trademark application;
Application form containing information about the applicant's identity.
An example of a trademark to be registered (If letters or letters other than Latin alphabet are used in the trademark sample, they must have the Latin alphabet equivalent)
List of goods or services subject to application(Class numbers of the goods or services subject to the trademark application according to the Nis Agreement and the list arranged in accordance with these numbers)
An information showing that the application fee has been paid
If the application is made for a joint brand or guarantee brand, the technical specification regulated within the scope of article 32
If there is a priority right request, the information showing that the priority right request fee is paid
Number of additional pages and information, if any
Information on joint representative, if any
In addition to the information on the deed of consent, if any; all documents are listed in article 5 of the Regulation are attached in full.
Trademark applications can also be made online at www.turkpatent.gov.tr or via e-devlet.
The Institution primarily examines the application in terms of the form and the applicant, location, documents to be attached and application form.
If it is determined that the identity information, signature, application form, trademark sample, application fee are missing or the goods or services subject to the application are not specified, the applicant is given a period of two months to correct the deficiencies.
A trademark application can be divided into two or more applications, at the request of the applicant, until the application is registered by the Institute. Registered trademarks cannot be divided.
A brand whose protection period has expired is renewed on the condition that the renewal fee is paid and the trademark owner requests, and this situation is published in the Bulletin.
The trademark owner can give up from all or some of the goods and services within the scope of registration of the trademark.
In the determination of registration procedures of the trademarks, the international conventions to which the Republic of Turkey is a party are also effective.
These include the World Trade Organization Foundation Convention, the Nis Convention, the Budapest Convention, the Paris Convention, the Madrid Protocol, and the Locarno Convention.
Within the framework of the provisions of the Protocol Regarding the Madrid Convention on the International Registration of Trademarks, in the examination of international trademark applications submitted to the Authority by the World Intellectual Property Organization and in the evaluation of any requests regarding international applications or registrations, the Madrid Protocol and the Official Gazette dated 12/3/1999 and numbered 23637 '' The Madrid Agreement Concerning the International Registration of Trademarks and the Regulation on the Implementation of the Protocol to this Agreement are based on.
What is the Procedure for objection to the Brand Bulletin?
Objections regarding the fact that a trademark application published in the Bulletin should not be registered in accordance with the provisions of articles 5 and 6 of the Law are made by the relevant persons within two months from the publication of the trademark application. The institution gives the applicant a one-month period to submit its opinions on the objections.
The parties harmed by the decisions of the institution can appeal within two months from the notification date of these decisions.
The Institute, if it deems necessary, may invite the parties to compromise during the examination of the objections to publication and the objections made against the decisions made in accordance with the third paragraph of article 19 of the Law.
Objections to publication and decision can be withdrawn before the Authority takes a decision on the objection.
What is a license?
The industrial property right can be transferred,It can be transferred by inheritance, it may be subject to licens, it can be put as pledge, it can be shown as collateral, it is subject to attachment or it can be subject to other legal action.
Geographical indication and traditional product name right; cannot be subject to license, transfer, attachment or similar legal transactions and it can not be collateralized.
Brand, design, patent or patent application can be subjected to a license agreement.
The trademark owner cannot waive the trademark right without the permission of the licensees.
Expanding the rights granted by the trademark owner through license without permission of owner or transferring these rights to third parties is within the scope of infringement of the trademark right.
The right arising from previous use cannot be extended or transferred by granting a license.
The transfer of the Guarantee brand or the joint brand or the license granting of the joint brand is valid upon registration.
In the patent, the license is divided into two, based on mandatory or contract.
Benefits based on rights arising from the license agreement may also be included in the loss of earnings.
Infringement of the Trademark Right
The following is considered within the scope of trademark infringement:
Using the trademark in the ways specified in article 7 of the Industrial Property Law without the consent of the trademark owner,
Imitating the trademark by using the trademark or indistinguishably similar, without the permission of the trademark owner,
Using the trademark or indistinguishably similar, to sell products bearing the trademark used by infringement even though they know or should know that the trademark is imitated, to distribute them, to take them to the commercial area in another way, to import them, to export them, to keep them for commercial purposes or to make a proposal for a contract on this product,
to expand these rights or transfer these rights that granted by the trademark owner through license, to third parties without permission of owner.
In case of infringement of the trademark, imprisonment, judicial fines and other security measures will be imposed within the scope of article 30 of the Industrial Property Law.
Geographical Indication and Traditional Specialty Guaranteed Right
As a result of the combination of natural and human elements, among the food, agriculture, mining, handicraft products and industrial products, those that comply with the conditions in this Book benefit from geographical indication or Traditional Specialty Guaranteed Right, provided that they are registered. The invalidity of the geographical indication or the Traditional Specialty Guaranteed Right may be requested from the court by those with interest.
In addition, it is possible for the registrant of the geographical indication or Traditional Specialty Guaranteed Right to waive the rights provided by the registration and the responsibilities related to the control of use.
Design
Design is the appearance of all or a part of the product or the ornament on it, resulting from features such as line, shape, shape, color, material or surface texture.
Product, on the other hand, refers to any object produced industrially or manually, except for computer programs, as well as a combined product or its parts, objects such as packaging, presentations of multiple objects perceived together, graphic symbols and typographic characters.
A combined product is a product that consists of parts that can be replaced or renewed by disassembly.
If the design has the features of innovation and distinctiveness enumerated in the law, it is protected within the scope of the rights provided by the law.
The design right may be subject to a license agreement.
In order for the part to be considered a design under the law, it must meet the following conditions.
Once the part is attached to the combined product, it should be visible for normal use of the combined product.
The visible features of the part must meet the requirements for innovation and distinctiveness.
It is possible for the court to decide to deem the design invalid, in cases listed in the law.
Besides, the design right; ends with the realization of one of the reasons that the expiration of the protection period or the non-renewal of the registration or for the right holder to give up his right.
The following is deemed to be an infringement of the design right under the law.
To produce the same or indistinguishably similar product in terms of general impression on which a design within the scope of protection is used or applied without the consent of the design owner, to put it on the market, to sell it, to make suggestions to make a contract, to use it for commercial purposes or to keep it for these purposes, to bring it to the commercial area in another way, to subject it to import;
to extend the rights granted by the design owner through license without permission of owner or to transfer these rights to third parties, to usurp the design right.
Patent and Utility Model
Imported patents, breeding and supply patents, additional patents and documents
Patents and utility models are granted on the condition that inventions in every field of technology are new, include an inventive step and are applicable to industry.
The invention that is not included in known state of the technique is considered to be new.
The known state of the technique includes everything accessible to the public anywhere in the world before the date of application, which has been demonstrated through written or orally or disclosed in use or in any other way.
Starting from the application date, the protection period of the patent is twenty years and the protection period of the utility model is ten years. These periods cannot be extended.
The patent applicant can request that the application whose processes are ongoing be transformed into a utility model application. In case of such a request, the Institute informs the applicant that it is required to submit the required documents within one month from the date of notification and to request a search by paying the search fee.
If the required conditions are not fulfilled within this period, the transformation request is deemed not made and the application continues to be processed as a patent application.
The utility model applicant can request that the utility model application be transformed into a patent application until the end of the three-month period following the notification date of the search report at the latest. In case of such a request, the Institute notifies the applicant that it is required to submit the required documents within one month from the date of notification and to make a search request by paying the search fee.
The patent application can always be withdrawn by the applicant before the date the patent is announced.
The patent applicant can apply for an additional patent to the original patent application, whose processes are ongoing, to protect the inventions that perfect or develop the invention subject to the patent, and which are in integrity with the subject of the original patent.
A patent application or patent may be subject to a license agreement.
Documents Required in Patent Application
In the patent application, the application form, the description explaining the subject of the invention, the claims, the pictures referenced in the description or the claims, a summary and a document showing that the application fee has been paid are requested.
Termination of the Patent
In the cases listed in the law, it is possible to decide on the invalidity of the patent.
In case the patent is decided to be invalid, the results of the decision will be effective retrospectively and the protection provided by law to the patent or patent application is deemed not to have arisen.
Besides, the patent right; it ends when one of the reasons is realized that the protection period expires, the patent owner relinquishes the patent right, the annual fees are not paid within the periods stipulated by the law.
Infringement of Patent Right
The following acts are considered as infringement of the patent or utility model right:
Imitating the product subject to invention by producing partially or completely without the permission of the patent or utility model owner.
To sell the inventive products produced by infringement, although it is known or should known that they are created by imitation, partially or completely, to distribute or otherwise bring it to the commercial field or import it for these purposes, to keep it for commercial purposes, to use it by putting it into practice or to make a proposal for a contract on this product.
To use the method subject to the invention without the permission of the patent owner, or to sell the products directly obtained by the method subject to the invention, although he knows or should know that this method is used without permission, to distribute or otherwise bring it to the commercial field or import for these purposes, to keep it for commercial purposes, to use it by putting it into practice or to make proposals for contracting with these products.
To usurp patent or utility model right.
To expand the rights granted by the patent or utility model owner through contractual license or compulsory license without permission or to transfer these rights to third parties.
Intellectual and Artistic works
They are all kinds of ideas and art products that carry the characteristics of their owner and are considered as science and literature, music, fine arts or cinema works.
Rights of the Owner
The owner of a work is the one who made it. The owner of a collection is the one who processes it, provided that the rights of the original author are reserved. In cinema works; The director, original music composer, screenwriter and dialogue writer are the co-owners of the work. In cinema works made with animation technique, the animator is also among the owners of the work.
The owner of the work determines whether a work is presented to the public or not, the time of publication and the style.
If the presentation of the work to the public or the way it is published is of a nature that would damage the honor and reputation of the owner, the owner of the work may prevent the public presentation or publication of both the original and the processed form of the work even if the owner has given written permission to someone else. It is and void to give up the power of prohibition with a contract. The other party reserves the right to compensation.
The authority to decide whether to present the work to the public or to publish the work with the name or pseudonym of the owner or anonymously belongs exclusively to the owner of the work.
With the copies obtained from a work of fine art by reproduction, the original or reproduced copies of an engraving must indicate the name or sign of the original work owner as agreed or customary. In addition, it must be clearly shown that the work created is a copy.
No abbreviations, additions or other changes can be made in the work or in the name of the work owner without the permission of the owner of the work.
The owner of the original can save on the work according to the terms of the contract made with the owner. However, he cannot spoil or destroy the work and cannot harm the rights of the owner of the work.
In case the work is unique and original, the owner of the work may request the work to be returned by fulfilling the preservation conditions in order to use it in works and exhibitions covering all periods.
The right to benefit from a work that has not been made public, in any form or style, belongs exclusively to the owner of the work.
The right to benefit from a work by processing it belongs exclusively to the owner of the work.
The right to reproduce the original or copies of a work in any form or method, in whole or in part, directly or indirectly, temporarily or permanently belongs exclusively to the owner of the work.
The right to rent, lend, sell or distribute the original or duplicate copies of a work belongs exclusively to the owner of the work.
The right to benefit from a work, either directly or by means of representation such as reading, playing and showing in public places with instruments that are used to transfer signs, sounds or pictures, exclusively belongs to the owner of the work.
Broadcasting the original or reproduced copies of a work by means of wired or wireless broadcasting organizations such as radio-television, satellite and cable, or by means of signal, sound and / or image transmission, including digital transmission, and receiving the published works from the broadcasts of these organizations, the right to be transmitted to the public by republishing by the copyright belongs exclusively to the owner of the work.
Some precedent decisions of the Court of Cassation are listed below:
Court of Cassation 11. HD, 14.04.2005, E. 2005/3752, K. 2005/3681
"In terms of patents and designs, the principle of real right ownership has been accepted in the Statutory Decree No. 551 and 554. The registration creates a presumption in favor of the person registered in its name. Because the Turkish Patent acts according to the declaration of the applicant and is not authorized to investigate the right owner ex officio. If an application has been made by a person who is not a real right holder or a registration certificate has been obtained on behalf of someone other than the real right holder, the person claiming to be the real right owner may sue, among other rights, to transfer the right to him. Therefore, in addition to the invalidity of the design registration registered in the name of the defendant, the plaintiff's request for registration in his name should also be accepted. "
Court of Cassation 11. HD, 24.01.2008, E. 2007/14938, K. 2008/1304
“Absolute innovation in terms of design (patent and utility model) in Turkish law, that is, it is accepted worldwide. Innovation examination should be done by the expert. In addition to the evidence submitted by the parties to the file, experts should also take into account the information and findings obtained as a result of their research. Because the search for absolute innovation is from public order. "
Court of Cassation 11. Civil Department 2015/11040 E., 2015/10526 K.
“Domain names are not subject to any legal regulations regarding their registration and use. The claims of superior and priority rights on these names should be discussed and resolved according to the provisions of unfair competition in articles 54 of TCC numbered 6102, unless they are also registered as trademark right.