Intellectual and Industrial Property Law

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intellectual property right; It is the right that provides a set of legal opportunities to anyone who reveals his creativity, arising from the activities that arise as a result of creativity in both industrial, scientific, literary and artistic fields. Intellectual property is the form of individual or institutional ideas embodied on a product and gained economic value.

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Intellectual and Industrial Property rights, all original designs and confidential or open information (intangible assets) of an enterprise regarding its products, methods (procedures), documents, visuals, identity elements, works of art, etc. It can also be defined as the rights of various natures such as converting into a product, distributing, disseminating, selling.

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* Rights of the Author
* Patent
* Associated Rights
* Useful model
* Brand
* Industrial design
* Geographical Indications

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Copyrights arise spontaneously when the work is created and the protection related to this is provided automatically with the presentation of the work to the public and although there is no need for a procedure such as notification or registration, in industrial property rights, the relevant invention, design, trademark, etc. must be registered.

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INDUSTRIAL PROPERTY RIGHTS

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Industrial property rights; In the name of the first implementers/inventors of inventions and innovations, new designs and original works such as trademarks, patents, designs, utility models and geographical indications, on behalf of the owners of the signs that will enable the manufacturer or seller to be distinguished on the goods produced and sold in the field of trade, These are the rights that enable individuals to have the right to produce and sell the product for a certain period of time.

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Patent Right

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For the solution or development of a technical problem in any field of the industry, the "Innovation", "Exceeding the Known State of the Technique" and "Industrial Applicability" conditions specified in the Decree Law No. 551, regarding the inventions, which are granted to the inventor or the person who finds it. called rights. In order for the invention to be protected as a patent, it is mandatory to have all of these 3 criteria.

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The most important issue about patents is the various databases and public documents of the patent; When the enterprise wants to solve a technical problem, it should examine these databases and check whether there is an invention that solves the said technical problem before starting to invent. Otherwise, even if he has made a similar invention with his own effort, without searching the database, without knowing it, he will not be able to obtain the right to use this already patented invention and may be subject to a penal sanction if he uses it.

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According to Article 73 of the Decree Law No. 551, the patent owner benefits from the patent right without making any distinction as to the place of the invention, the field of technology and whether the products are imported or domestically produced.

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Patent owner, third parties without permission;

- Production, sale, use or importation of the product subject to the patent or keeping it for any reason other than personal need for these purposes,
- The use of a method that is the subject of a patent,
- Proposing the use of a method patent, which is known or should be known to be prohibited, by third parties,
- Offering the products directly obtained by the method subject to the patent for sale or using or importing or keeping them for any reason other than personal need for these purposes.

There is a right to prevent.

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According to Article 86 of Decree Law No. 551, a patent application or patent can be transferred to someone else, inherited, the right to use can be the subject of a license and it can be pledged.

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In our country, patent application is divided into two as examined and unexamined. After the necessary procedure is completed in the examined patent applications by the Turkish Patent Institute, an examined patent with 20-year protection is granted if the conditions are met. If an unexamined patent application is made, the TPE form grants an unexamined patent with 7 years of protection as a result of the examination. As a result of the examinations, TPI decides whether the invention is patentable or not. The appeal process is included in the relevant decree laws and regulations.

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551 Patent right according to Article 133 of Decree Law

- Expiration of the protection period,
- The patent owner's renunciation of the patent right,
- It ends with the realization of one of the reasons why the annual fees and additional fees are not paid within the stipulated time.

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The subject of the patent, whose right has expired, is considered the property of the society from the moment the reason for the termination is realized. This matter is announced by the Institute (TPI).

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Patent protection of inventions is provided within the framework of national laws valid in each country. In other words, in order for an invention to be protected with a patent, it is obligatory to file a patent application one by one in each country where protection is sought.

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Utility Model Right

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Even if it does not exceed the known state of the art, the type of invention that creates innovation and can be applied in any branch of the industry is called a Utility Model. Compared to a patent, it has the characteristics of smaller inventions.

 

The rights of the inventor are the same as the patent and the protection period is 10 years.

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Industrial Design Right

In the Decree Law No. 554 on the Protection of Industrial Designs, "Design refers to the whole or a part of a product or the whole of the ornament on it, various elements or features perceived by human senses such as line, shape, form, color, texture, material or flexibility. " be clearly defined astaste.

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Design registration protects the appearance of the product. With this right, the important thing is not the technical features of the product, but its unique appearance and original design features.

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According to Article 12 of Decree Law No. 554, the protection period of registered designs is 5 years from the date of application. This period can be extended for a total of 25 years, to be renewed in five-year periods.

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According to Article 13 of Decree Law No. 554, the right to design belongs to the designer or his legal successors, inheriting in case of death. If there is more than one designer, unless there is an agreement between the parties, the designers are entitled under the provisions of joint ownership.

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In cases where there are more than one designer or the design is inherited; Each right holder can independently perform the following actions on his own behalf:

a. He freely disposes of his share,
b.Use the design after giving notice to other right holders,
c. Take the necessary measures to protect the design,
d. In case of any infringement of the joint design application or the rights arising from the design, it may file a civil or criminal lawsuit against third parties.

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The Right to Protect the Geographical Indication

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They are signs that show a product that is identified with the region, area, region or country where it is located due to a distinctive feature, reputation or any feature of any geographical region or region.

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Geographical indications are divided into two as the name of origin and indication of origin. The name of origin requires that the product has been produced in its entirety at the identified location. Products cannot be produced outside of the geographic region to which they belong. In the indication of origin, at least one of the production, processing and other processes of the product must take place in the geographical area whose borders are determined.

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Ensuring that domestic producers producing in the region where the geographical indication is registered benefit from the protection provided by the registration as a priority; It is ensured that the quality of the product subject to the geographical indication is protected and that a guaranteed product is offered to the consumer by this means.

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Real or legal persons, consumer associations or public institutions related to the subject and geographical region, who are the producers of the product in the region, have the right to apply for a geographical indication.

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Right to Brand Protection

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A trademark is any sign that can be displayed by drawing, published by printing and reproduced, such as person names, words, shapes, letters, numbers, form or packaging of goods, which helps to distinguish the goods and / or services of an enterprise from the goods and / or services of another enterprise.

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Brands can consist of words, shapes, letters or numbers. Brands are often confused with trade names. Trade name of the merchant (real person or legal person merchants), brand serves to distinguish the identity of goods and services from others.

After the trademark is registered, it cannot be used by another person with different elements without changing its distinctive character, otherwise it violates the right to use the trademark. A registered trademark may be transferred, inherited, the right to use may be the subject of a license, may be pledged and shown as a guarantee.

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Infringement of the Brand

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1- Using the equivalent of a registered trademark belonging to someone else in terms of form and meaning
2-The use of the brand and its like by persons other than the right holders
3- Putting on the market and stocking the goods bearing the mark
4- Import and export of goods bearing the sign
5- Use of the sign in business documents and advertisements
6- Creating confusion
7- Selling, distributing, holding for commercial purposes the products bearing the trademark used through infringement
8- Extending or transferring the rights granted by license
9-Participating in acts of rape, encouraging or facilitating their execution
10- Refraining from reporting where the product or goods bearing the brand or similar is obtained or how it is obtained

 

CLAIMS THAT MAY BE CLAIMED IN CASE OF INFRINGEMENT ON THE BRAND

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In case of infringement, the trademark owner can claim the entire damage suffered. While determining the amount of this damage, the amount of profit that the trademark owner deprives, the possible gain that the victim can obtain by using his own trademark, or the license fee that would have been paid if the trademark was used within the framework of a license agreement are also taken into consideration.

The person who infringes the trademark right; If the brand is used badly or inappropriately, the owner of the brand has the opportunity to request additional compensation due to the damage to the brand's reputation.

The subject of confiscation of the goods, the production or use of which requires a penalty due to infringement of the trademark right, and the vehicles used to produce this goods, the granting of ownership to the victim on the confiscated products, and the destruction of these products and vehicles are specifically regulated.

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ACTIONS THAT CAN BE OPENED IN CASE OF INFRINGEMENT OF THE TRADEMARK

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In case of infringement cases listed in Article 61 of the Decree Law, the trademark owner has the opportunity to file civil and criminal cases against those who infringe the trademark. Lawsuits that can be filed in this regard;

1- CASE FOR DETERMINATION OF EVIDENCE: A lawsuit to be filed in the future is filed with the aim of convicting the events and documents that may constitute evidence of the existence of rape.
2-CLAIM FOR COMPENSATION DUE TO BRAND INFRINGEMENT
The actual damage suffered by the trademark owner, the profit he has been deprived of and the person who infringes the trademark right must have the trademark of appropriate quality, etc. may claim compensation for the moral damage suffered due to non-use.
3- CASE OF STOPPING ACTIONS OF INFRINGEMENT
4- ACTION REGARDING THE APPLICATION OF ITEMS WITH PENALTY FOR THE MANUFACTURING AND USE OF THIS ARTICLE
5- ACTION FOR RECOGNITION OF OWNERSHIP ON THE CONFIDENTIAL PRODUCT
6- TAKING OTHER NECESSARY MEASURES, DELETING THE BRANDS, DISPOSAL OF PRODUCTS AND VEHICLES
7- CRIMINAL ACTIONS TO BE FILED DUE TO INFRINGEMENT OF THE TRADEMARK RIGHT

 

According to 556s.KHK 61/A;

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1- From 1 year to 2 years, about those who make false declaration of identity that should be stated as the owner of the trademark, those who remove a trademark protected item and the mark on its packaging without authorization, those who unfairly show themselves as a trademark application or trademark right holder. shall be sentenced to imprisonment and a fine from three hundred million liras to six hundred million liras.

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2-Those who transfer, give, pledge, or make any disposition on these rights, one of the rights written in the articles of the legislation on transfer and transfer, pledge and lien, or the license related to this right, although they should know that they have no rights or relevance, In cases where the trademark right is not owned and the protection period expires or the trademark right is invalidated or the right arising from the trademark protection expires, marks on the goods or packaging or commercial documents or advertisements manufactured by him or someone else, in a way that gives the impression that they are related to a legally protected trademark right. Those who post such texts, signs or expressions in advertisements and advertisements in the written and visual media for this purpose are sentenced to imprisonment from two to three years, and fined from six hundred million to one billion.

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3- For those who commit one of the acts written in Article 61 of the Decree Law, it is decided to be sentenced to imprisonment from 2 to 4 years and fined from six hundred million to one billion, as well as to close their workplaces for a period of not less than one year and to be banned from trade for the same period.
The complaint must be made within 2 years from the date of becoming aware of the act and the perpetrator.
If a legal entity commits one of these acts while conducting its business, the legal entity is jointly liable for costs and fines.