Zülal Erbil
Trainee Lawyer
For people to have instincts to mark and identify things or objects that they have generated by using their creativity is an ongoing fact. The term of intellectual property which has been improving for this purpose, is a term generated from intellectual effort on industrial, scientific, literal, artistic fields and using to imply all kind of right in trade field. Intellectual property is divided to two following sections which are; ‘Intellectual rights’ and ‘Industrial rights’. Intellectual rights contain the field of copyrights and neighboring rights, and Industrial rights contain trademarks, designs, patent and petty patent etc. The subject of ours which is ‘Trademark and Patent’ is included and evaluated to the section of Industrial Rights.
Trademarks provide to recognize goods or services from an others and thus they are ones of the most valuable and important articles for company’s assets. Trademark constitutes all kind of marks which represent the company (letter, logo, form, inscription etc). The most important and principal specialty of a trademark is for it to be characteristic. It is decisive that these letters, logos, forms must be used during commercial activities.
‘Trademark registration’ is to legally register the marks entitled fully to represent a company and to receive a document which proves the registration. The trademarks are protected in the country where it is registered. To apply to trademark registration in one country does not give the same protection in other countries. That is exactly the reason that each person who wants to protect the trademark must register the trademark in each country that they want to be protected in. Unfortunately, there is not any system that gives registration worldwide. But yet, there is systems gives ability to have benefits of collective registration. There are three collective registration systems that Turkey benefits from. Those are;
Community Trade Mark (CTM): Provide a registration in all European Union countries by singular application.
Madrid Protocol: Provide a registration in over 93 member countries by one application.
OAPI (African Union); Gives the advantage to be registered in all 17 countries by one application.
When we look today, values of trademarks can be even higher than the values of the all company reserves. By that, it matters to prevent attempts and violations against trademarks which are respected and have high return value. Primarily the trademark has to be registered to the name of the real owner. In which, bad faith in trademark law is also mentioned under the Executive Order to Protection of Trademarks Numbered 556. It is possible to object to trademark application by the reason that they are made in bad faith, to file an invalidity lawsuit under the conditions listed in Executive Order to Protection of Trademarks Numbered 556, but yet it is still necessary for known trademarks to file lawsuit within 5 years from the registration date and but there will not be any deadline in case of bad faith of trademark registration. The one and only institution in Turkey who is entitled of registrations is Turkish Patent Institute. It is possible to be concluded the process as rejection by TPI in case of trademark is not appropriate. Therefore, it is necessary to evaluate the trademark application in the scope of the Executive Order about Protection of Trademarks Numbered 556 before trademark application.
The trademark application should be the first step to invest on the trademark. Otherwise, if a trademark is not registered, it is unavoidable that individuals gain unlawful profit over investment about trademarks and unpreventable for trademark holder to be damaged in case of these individuals take trademark to legal bases. Because, individual or company who/which registers the trademark or the similar one can start legal process or sue or claim against the real owner of the trademark. Also according to the Code, under the conditions listed in code, invalidity of trademark can be possible. As it mentioned in article 14 of Executive Order about Protection of Trademarks Numbered 556, Trademark become invalid in case of non-use of the trademark without any valid ground in five years beginning from the registration date or to discontinue to the usage of the trademark continuously for five years period. Also, to use trademark as it is the name of a kind is an invalidity reason.
In some situation, the existence of trademarks which should not have been registered in the first place or which are become against to relate regulation appeared after the registrations can be potential. Individuals or companies damaged by mentioned circumstances may demand invalidity of the trademark after registration.
On the other hand patent is the right for the originator to produce, use, sell or export the invention for certain period. Inventions that are new, applicable to industry, surpass the certain technical situation are protected by patent. By granting a patent, there is some rights arise. The name of the document that gives the protection is called patent as well.
‘Right of the patent’ keeps important part in industrial rights, especially concerns developing countries and it is a right related to property which is not immaterial. The utilization of rights granted to patent holder for commercial purposes by third parties without having permission of holder is a violation of right arisen from patent. However, third party’s action is out of the scope of patent, this action cannot be accepted as a violation. For this reason, the actions out of the scope of patent can be pleaded in lawsuits brought against them because of the patent violation by third party as a defense. Also expiration of right arisen from patent or invalidity of patent can be pleaded as a defense.
Patents are bounded to principle of territoriality same as trademarks. Turkish patents give Turkish protection. In order to have a validity of protection in other countries, it is necessary to apply to other countries for registration. Patents that are not registered will not have the protection under the Executive Order about Protection of Patents Numbered 551. Turkish Patent Institute looks for one year innovation criteria for patent application. If an invention is not applied for granting patent document after one year of invention date, this invention is accepted as public knowledge and the patent of it cannot be granted. The Executive Order about Protection of Patents Numbered 551, is only applicable for the registered patents. The inventions which are not registered but are being used in some way are out of the scope of protection. These kinds of inventions are protected according to general provisions which mean Turkish Commercial Code under unfair competition.
The main aim of the patent is to reward the inventor, by that to encourage people to invent and to reveal information about invention. This kind of information may bring improvements specifically to industry. Thus, they can contribute to economy of country. The inventions which are expired the protection period, become public knowledge and/or is being transferred and employed by developing countries.
In order to protect an invention, it has to be new, applicable to industry, surpass the certain technical situation. Applier for patent is accepted as the inventor until otherwise proved and the inventor and its successors hold the right of patent. The applications are recorded to patent registry and by the date, hour and minute of the application petition given, the application process and protection start. The applications are recorded to TPI and announced in Patent Bulletin. After 6 months from the announcement date, third parties state their opinion about content of the patent announced to TPI. . The accepted patents have been protected for 20 years within the application date. The right of patent is an absolute right and may be contested against everybody by the inventor.
