Commercial LawProtection of Trademark Right and Importance of Trademark Registration

Importance of Trademark Registration: How to Protect Your Business Identity and Value?

In today’s competitive market conditions, one of the most valuable assets of a business is its identity in the minds of consumers, namely its brand. A brand is much more than a name, logo, slogan or shape that represents intangible values such as quality, trust and reputation that distinguish a product or service from its competitors. It is often said that what is more valuable than Coca-Cola’s formula is its brand name. However, the most basic and most important step to be taken in order to legally protect this valuable asset and prevent its unfair use by others is the registration of the trade mark. In Turkey, trademark registration is carried out before the Turkish Patent and Trademark Office (TURKPATENT) within the framework of the provisions of the Industrial Property Law (IPL). In this article, we will examine in detail why trademark registration is not a choice but a necessity, how the registration process works, the legal guarantees provided by the registration to the trademark owner and the remedies that can be applied in case of infringement of the trademark right.

What is a Trademark and Why Should it be Registered? According to the IPL, a trademark may consist of “all kinds of signs, including words, including personal names, shapes, colours, letters, letters, numbers, sounds and the form of the goods or their packaging, provided that they enable the goods or services of an undertaking to be distinguished from the goods or services of other undertakings and can be displayed in the registry in such a way that the subject matter of the protection provided to the trademark owner can be clearly and precisely understood”.

Trademark registration provides the following vital advantages to a business:

1. Monopoly Right (Exclusive Powers): Registration gives the trade mark owner a monopoly right to use the trade mark throughout Turkey for the classes of goods and services for which it is registered. No other person may use the same trademark, or one similar enough to create a likelihood of confusion, for the same or similar goods/services without authorisation.
2. Legal Protection Shield: Registration officially proves the legal existence of your trade mark. In case your trademark right is violated, it allows you to protect your rights by filing civil and criminal lawsuits. Protecting an unregistered trademark is much more difficult and limited than unfair competition provisions.
3. Commercial Value and Investment Instrument: A registered trademark is a valuable intangible asset on a company’s balance sheet. The trademark can be transferred, inherited, leased through licence agreements and pledged as collateral.
4. Prevention of Imitation and Unfair Use: Registration prevents others from gaining unfair advantage over your labour and reputation by imitating your trademark.

Trademark Registration Process Step by Step:

1. Trademark Research (Preliminary Research): It is a detailed investigation of whether the trademark you want to register has been previously registered by someone else in the relevant goods and service classes or whether there is a similar trademark application. This step is critical to minimise the risk of rejection of the application.
2. Application: An online application is submitted to the TPTO together with a sample of the trade mark to be registered and a list of the goods and services (according to the Nis Classification) for which the trade mark will be used.
3. Institution Review: TURKPATENT examines the application from a formal and legal perspective. It examines whether the trademark meets the absolute grounds for refusal specified in the IPL (e.g., not being distinctive, being descriptive, being contrary to public order).
4. Publication and Objection Period: The examined application is published in the Official Trademark Bulletin for two months. During this period, third parties who have a previously registered trademark or who think that they have rights in the trademark may object to the application.
5. Decision on Registration: If no opposition is received within the publication period, or if the oppositions are rejected by the Office, the trade mark is registered and entered in the Trademark Registry. The registration is valid for ten years from the date of application and can be renewed indefinitely in ten-year periods.

Infringement of Trademark Right (Trademark Infringement) and Legal Remedies: Using, selling, importing, importing or keeping the same or similar trademark in the commercial area without the permission of the trademark owner is considered as trademark infringement. In this case, the trademark owner may apply for the following legal remedies:

• Civil Cases (Intellectual and Industrial Rights Civil Court):

  • Action for Detection, Cessation and Prevention of Infringement: Requesting the court to determine whether the act is infringement of the trade mark, to stop the ongoing infringement and to prevent possible future infringements.
  • Compensation Litigation:
    • Material Damages: Compensation for the actual damage suffered due to infringement and the deprived profit. While calculating the deprived profit, the trademark owner may request one of the options such as the net profit obtained by the infringer, the possible income that the infringer may obtain, or the licence fee to be paid if the infringer uses the trademark under licence.
    • Moral Damages: Claiming moral damages in case of damage to brand reputation.
  • Seizure and Destruction Action: Requesting the seizure and destruction of infringing products, devices and machines used in the production of these products.
  • Publication of the Court Decision: Providing public information and deterrence by requesting the court decision to be announced in a newspaper or similar media at the expense of the other party.

• Criminal Action: Persons who produce goods or provide services, sell, import or export goods or services by infringing the trademark right of another person shall, upon complaint, be sentenced to imprisonment from one year to three years and a judicial fine up to twenty thousand days.

A trademark is the signature and the most valuable capital of an enterprise in the market. The first and most effective step to protect this capital is to register the trademark with the TURKPATENT without wasting time. Registration not only gives you a monopoly right to use the trademark, but also provides the opportunity to apply strong legal and criminal sanctions against those who violate this right. Trademark registration process and subsequent protection mechanisms are legal processes involving technical details. Therefore, getting professional support from a lawyer or attorney specialised in the field of trademark law, both during the registration phase and in the event of a possible infringement, will enable you to protect your rights fully and effectively. Remember, an unregistered trademark means an unprotected treasure.