Let’s begin with definition of “brand” which has forged ahead of all values in economic order nowadays. According to article 5 entitled “signs the brand shall include” of Decree Law no 556 about Protection of Brands, “Brand contains any kind of signs being able be viewed by drawing or be expressed in similar vein, be issued and run off through printing such as, especially words, shapes, letters, numbers, form or package of goods, including personnel names, on condition that it provides discrimination of an enterprise’s goods or services from goods and services of another enterprise”. Thus, BRAND can be defined as: “DISTINCTIVE SIGN that is used to distinct similar products or services from products or services of others or used in the course of providing a particular service.”

Brand which has not been registered does not belong to you. The most important case to be able to benefit from protection of brands is brand’s being registered. If a brand that is used and attempted to become well-known and valid by your side is registered by someone else, henceforth it will belong to him whom carried out brand registration. I think it is useful to state hereby that trade names registered to Commercial Registry will also not be accepted as brand.

Protection of brands is the system where brand owners protect the brand they use on theirs products or services. In this context, the purpose of brand registration is benefiting from protection through private law. Legal arrangements regarding Protection of Brand which began in Turkey with ‘Regulations Pertaining Distinctive Sign Regarding Factory Products and Commodities’ dated April 28, 1304, have continued with Brands Law no 551, Decree Law no 551 and finally Decree Law no 556. Also, in Turkish Commercial Law, Consumer Protection Law, Code of Obligations, Attorney’s Act and some other legislation, there are provisions directed to Protection of brands. And Turkish Patent Institute founded by Law no 518, is the institution relating to registration and protection in Turkey of brands of both citizens of Turkish Republic and brands registered in all over the world due international agreements.

Turkey approved World Trade Organization (WTO) Establishing Treaty, the most comprehensive organization regarding Protection of Brands, with Law no 4067 dated January 26, 1995. Our participation into Cenevre text of La Haye agreement was again approved with Law no 5117 dated April 07, 2004. Thus, the brands registered in Turkish Patent Institute, are benefited from protection of brands provided by Madrid Agreement, Madrid Protocol, Nice Agreement, Paris Agreement, La Haye Agreement.

While brand register is made, correct determination of goods or services the brand register will include is so important as well as diversity of the selected brand, namely the distinctive sign, from other brands. As protection provided by brand register is limited to goods on which the brand will be used, list of goods and services is to be classified correctly. This classification has been composed by Nice Agreement and designated as “Nice Classification” in Brands Legislation. For instance, while a company that produces shoes should select class 37 as Nice class, a company that produces shoe polish should select class 2 and register its brand accordingly. Otherwise it can not benefit from brand protection.

The most important case of benefiting from brand protection is the brand’s being registered. However this is not adequate alone. The ones who has made their brands well-known and valid can only benefit from registration. In a truer expression, it is necessary to be the real owner of the brand to provide registration of that brand and that this register provides full protection. The law suit involves in our web site and which we ourselves follow, has concluded with cancellation of defendant company’s, B…Karafırın Ltd.Şti., brand application and delete of “Karafırın” inscription from its corporate name, by application of the client company who has made “Karafırın” brand well-known and valid and registered on its name against the defendant company which has developed confusion to its brand. On this law suit, which has enrolled into Law literature also, if a reason for our being justified is having registered the brand, the other is the fact that client has made it well-known and valid. (see Erdal NOYAN, Brand Law, October 2004, pg. 365) So it is appropriate to say hereby that, brand register protects the justified, the actual brand owner.

Turkish Patent Institute Brand protection period is 10 years. The brand is to be renewed at the end of 10 years beginning from register date, the brand which is not renewed in due time is left unprotected as if it were never registered.

One of the conditions to benefit from brand protection is the brand’s being used. Unfortunately malicious are registered brands that they do not use on their names, especially for the purpose of marketing to others. To prevent it, by provision brought by Decree Law no 556, if the brand that is registered is not used within 5 years, then it registration shall be cancelled by court decision.

DIFFERENCE BETWEEN “BRAND INFRINGEMENT” AND “UNFAIR COMPETITION”.

On article 56 of Turkish Commercial Law no 6762 unfair competition is defined as; "Unfair competition, is any abuse of economic competition by miscellaneous means of deceptive behaviors or contrary to good faith principles. So counterfeiting of brand is also deceptive behavior within this context. In both cases, misapplication of brand is in question. For this reason meaning of these two terms might be confused. Shall we demand for whether prevention of unfair competition or Protection of Brand against an injustice? The best reply to this has been given by verdict of Assembly of the Court of Appeals dated December 12, 2007, no 2007/11-965. 2007/961: “Unauthorized use of brand is “UNFAIR COMPETITION” in terms of non registered brand and “BRAND INFRINGEMENT” in terms of registered brand”.

As clearly defined by Turkish Commercial Law, all deceptive behaviors and all misuses contrary to principles of good faith are considered as unfair competition. From this point of view, counterfeiting of our brand, giving reason to misperception on the buyer by creating confusion, exactly using the brand without authorization of the owner constitute unfair competition. It is possible to demand prevention of unfair competition against these actions due provisions of law (Turkish Commercial Law article.56). However, to be able to benefit special law (Decree Law regarding Protection of Brands no 556), it is a sine qua non that the brand has been registered at Turkish Patent Institute. This nuance between the two concepts has creates a great difference in practice. If your registered brand is used unlawfully or is imitated in such a way to create confusion, you can demand protection of your brand. . As the brand is registered, a presumption in then direction of your justness will be present and it will be adequate for you just to prove use or presence of confusion. However, if you have not registered your brand, first you will have to prove that you are owner of this brand and then prove existence of unfair competition and demand for prevention of unfair competition. The long and short of it, in the event that the brand is used unfair and unlawfully; burden of rebuttal shall belong to opposing party if it is registered, and if not, it shall belong to your side. If your brand is registered, you will benefit from protection of brands, if not, you will seek your right according to general provisions.

Moral from the story; Let’s become “Brand”, create “brand”, register our “brand”.