distinguishing mark used in commercial activities include business name, trade name, brand, geographical indication and internet domain name.
turkish commercial code article 18-(1)The merchant is subject to bankruptcy for any debt; and It is also obliged to choose a trade name in accordance with the law, to register its business to the trade registry and to keep the necessary commercial books in accordance with the provisions of this Law.
The trade name has been regulated in the 39th article of the Turkish Commercial Code under the heading "Obligation to Use a Trade Name" and the following articles.
Every merchant is obliged to carry out the transactions related to business with trade name and draw up a deed and other documents related to their business under this trade name.(Turkish commercial code 39/1)
The registered trade name is written legibly in a visible place of the commercial enterprise.In the commercial letters issued by the merchant regarding the business of the merchant and the documents on which the records made in the commercial books are based, the registration number of the merchant, the trade name, the head office of the business and the address of the registered website, if the merchant is subject to the obligation to create a website, is also indicated.All this information is published on the company's website.In addition, on this site, the names and surnames of the chairman and members of the board in joint stock companies, the amount of stipulated and paid capital, the names and surnames of the managers in limited companies, the amount of stipulatedand paid capital, the names and surnames of the managers in commandite companies and the amount of stipulated and paid capital, is published.(Turkish commercial code 39/2)
The merchant is obliged to register and announce the commercial enterprise and trade name to the trade registry where the business center is located within 15 days from the day the commercial enterprise is opened.(Turkish commercial code 40/1)
Trade name is the name used to distinguish a merchant from another.It is possible to say that the equivalent of the name and surname used in real persons is the trade name in commercial life.It is obligatory to use a trade name for real person merchants as well as for legal person merchants and it is included in the scope of protection in terms of distinctiveness.
However, if a trade name that has not been duly registered to the trade registry, it cannot be protected under trademark law; but it is possible to protect it within unfair competition provisions if the conditions are met.Therefore, the registration of the trade name to the registry is also important in terms of the protections it provides.The right to use the registered and announced trade name belongs only to its owner.
In accordance with Article 45 of the TCC, the criterion for the ion and registration of the trade name is the previously registered trade names.As such, the problem of ensuring the protection of previously registered trademarks also arises.In a decision made in 2007, assembly of civil chamber of court of cassation decided that if a previously registered trademark is requested to be registered as a trade name, based on the principle of priority, the name is not free.
There are some important differences between protection under trademark law and protection under unfair competition provisions.For example, the owner of the registered trade name may object to the trade name name being registered as a trademark by someone else or a merchant whose trade name has been harassed due to another trade name may request that the trade name of the counterparty be erasure of entry in register or it may be requested from the other party to use another distinctive addition.
In another aspect, we often see the use of brands as trade names by malicious people. Although the brand and trade name essentially have different functions, nowadays, merchants who use the trade name as a brand are frequently seen in practice.
Persons who have registered their trade name can object to the application if their trade name is registered as a trademark by someone else, within the scope of the Law on Protection of Trademarks.However, the registered trademark holder cannot object to the registration of the brand name which takes place in legal or real person name, as a trade name.
TCC article 46 "...not to cause an erroneous opinion in third parties and not contradict to the truth and public order..";We can say that with this regulation, lawmaker aims to prevent confusion in the registration of the trade name.
TRADE NAME OF THE REAL PERSON MERCHANT
The real person merchant can use name and surname and the appropriate names(?) in Article 46 of the TCC. "...Additions that indicate the characteristics of the business or the identities of the persons in the trade name, or fictitious names can be used."
It is obligatory for the real person merchant to use their name and surname without abbreviation.The discretion as to whether to use a addition(?) or not belongs to the merchant.
TRADE NAME FOUNDED BY THE ASSOCIATION OR FOUNDATION:
The trade name to be used for the enterprises operated by the association or foundations must be the same as the name of the association or foundation.
joint stock company, LIMITED COMPANY TRADE name:
Joint stock or limited company trade name can be determined in any way, provided that it is not contrary to the provisions in article 46 of the TCC. TCC article 46"Provided that it does not cause an erroneous opinion in third parties about the identity of the merchant, the breadth of its business, its importance and financial status, and it is not contrary to the truth and public order; Additions that indicate the characteristics of the business or the identities of the persons in the trade name, or fictitious names can be used."
However, if the name and surname of a real person is added to the trade name, it is obligatory to use the words "joint stock company / limited company" without abbreviation.
trade name of association of shipowners:
While determining the trade name of the shipowners, the name and surname of at least one of the owners or the name of the ship used in maritime trade must be included.
The point to note here is that the surname cannot be shortened when using the name of any of the persons who equip it, and if the name of the ship is used in the trade name of the association of shipowners, the ship name cannot be shortened.
COOPERATIVE TRADE NAME:
the trade name of cooperatives and their parent organizations can not included the names of public institutions and organizations.
Only organizations established in accordance with the Cooperatives Law can use the name of the cooperative.
The business subject must be indicated in the trade name of the cooperative and the word "cooperative" must be used in the trade name.
COLLECTIVE COMPANY TRADE NAME:
The trade name may consist of the name and surname of all partners of the collective company and the phrase "collective company", as well as the name and surname of only one partner and the word "collective".
COMMANDITE COMPANY TRADE NAME:
The name and surname of at least one active partner and if it is ordinary commandite partnership, the phrase "ordinary commandite partnership" must be present.In the case of a commandite partnership, the capital of which is divided into shares, the phrase "commandite partnership divided into shares" is mandatory.
The name and surname of the commandite partner or if the commandite partner is a legal entity, the name of legal entity cannot be found in the trade name of a commandite partnership.