The Crime of Trademark Infringement in Turkish Law
Av. Ali Mert Çavuşoğlu Av. Sultan Ballı
Introduction
Trademarks enable businesses to differentiate their goods or services from those of competitors, making them one of the most essential elements for building brand recognition and maintaining a strong reputation in today’s economy. For this reason, businesses invest considerable effort and resources into creating and protecting strong trademark portfolios. Recognized as one of the most valuable assets of a business, trademarks are also extensively safeguarded by legal frameworks across jurisdictions.
Under Article 7 of the Turkish Industrial Property Code (IPC) No. 6769, the rights arising from trademark registration are exclusively granted to the trademark owners. Accordingly, trademark owners are entitled to demand the prevention or cessation of unauthorized uses that infringe their trademark rights and seek compensation for any damages incurred.
In addition to the civil remedies mentioned above, acts constituting trademark infringement are also defined as criminal offenses under Article 30 of the IPC and are subject to criminal sanctions.
This article briefly examines the criminal provisions regarding trademark infringement regulated under Article 30 of the IPC.
I. Acts that Constitute the Crime of Trademark Infringement are Defined by the Law
Article 30(1) of the IPC provides that "anyone who infringes another's trademark right through counterfeiting or imitation, and produces goods or offers services, offers for sale, sells, imports, exports, or commercially purchases, possesses, transports, or stores such goods shall be sentenced to imprisonment for one to three years and a judicial fine up to twenty thousand days."
Pursuant to Article 30(2) of the IPC, "anyone who removes the indication of trademark protection from a product or its packaging without authorization shall be sentenced to imprisonment for one to three years and a judicial fine up to five thousand days."
Finally, Article 30(3) states that "anyone who, without authorization, disposes of another’s trademark rights by transferring, licensing, or pledging them shall be sentenced to imprisonment for two to four years and a judicial fine up to five thousand days."
II. The Trademark Must Be Registered in Turkey
It is important to note that criminal sanctions for the acts listed above require the trademark in question to be registered in Turkey. Therefore, individuals using an unregistered mark or claiming rights over it, as well as those whose trademarks are registered in other jurisdictions but not in Turkey, cannot file a complaint alleging trademark infringement under this article. However, it should also be noted that other criminal sanctions may be imposed in such cases under Article 62 of the Turkish Commercial Code for the crime of unfair competition.
III. Trademark Infringement Is a Complaint-Based Offense
Under Article 30(6) of the IPC, trademark infringement is a complaint-based offense. According to Article 73 of the Turkish Penal Code No. 5237, if the authorized party does not file a complaint within six months, the offense cannot be investigated or prosecuted.
The six-month period begins on the day the trademark owner or other authorized person becomes aware of the infringing act and the identity of the infringer. If there are multiple authorized persons, one’s failure to file a complaint within six months does not affect the rights of others.
If the victim withdraws their complaint, the case will be dismissed. However, if the complaint is withdrawn after a conviction has become final, the imposed penalty will still be executed.
If the offense was committed jointly, withdrawing a complaint against one suspect extends to all others involved.
It is crucial to note that if the victim, during withdrawal, explicitly states that they are also waiving their personal rights, they will no longer be able to file a civil lawsuit seeking the cessation of the infringement or damages.
IV. Trademark Infringement Is Subject to Conciliation
Trademark infringement is among the offenses subject to conciliation. According to Article 10(2) of the Regulation on Conciliation in Criminal Procedure, if the prosecutor finds sufficient evidence to suspect that a public case may be filed, the file will be referred to the office of conciliation. The assigned conciliator will then attempt to reconcile the parties.
Under Article 20(2) of the same regulation, if the parties reconcile and the suspect fulfills their obligations immediately, the prosecutor will issue a decision of non-prosecution, effectively concluding the investigation.
V. The Suspect/Defendant May Benefit from Effective Remorse
Under Article 30(7) of the IPC: "Anyone who offers for sale or sells counterfeit goods produced by infringing another’s trademark right and provides information about their source, thereby enabling the identification of counterfeit producers and the seizure of counterfeit goods, shall not be penalized."
To benefit from the effective remorse provision, the suspect/defendant must fulfill the following conditions:
Disclose the source of the counterfeit goods they offered for sale or sold.
Enable the identification of those producing the counterfeit goods.
Facilitate the seizure of counterfeit goods through their identification.
If all these conditions are met, the individual benefiting from effective remorse will not be penalized.
VI. Jurisdiction and Competence in Trademark Infringement Cases
Under Article 156 of the IPC, the competent court for trademark infringement cases is the Criminal Court of Intellectual and Industrial Property Rights. In judicial localities where Criminal IP courts have not been established, the Criminal Court of First Instance will have jurisdiction over such cases.
According to Article 12(1) of the Criminal Procedure Code No. 5271, the court with territorial jurisdiction is the court in the location where the criminal offense was committed. Other jurisdictional rules provided under the Criminal Procedure Code may also apply when relevant.
