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THE CONCEPT OF ACCEPTANCE AND CONCERN IN THE CRIME OF INFRINGEMENT OF THE BRAND RIGHT

Article 30 of the Industrial Property Law No. 6769: “A person who produces goods or offers services, offers for sale or sells imports or exports, buys, possesses, transports or stores for commercial purposes by infringing on another's trademark right by quotation or confusion. shall be punished with imprisonment from one year to three years and a judicial fine of up to twenty thousand days.”

For the trademark to be a crime within the meaning of Industrial Property 30;

1- Trademark is registered,

2- This registration must be in Turkey.

After explaining this situation, we would like to explain and exemplify the concepts of citation and confusion, respectively.

Citation Concept

The word citation is defined by the Turkish Language Association as "borrow", "borrowed" and "quote". In trademark law, the concept of citation is defined as the use of signs that establish an identity link with a registered trademark that may be the subject of a crime, on the subject of the crime or product, etc. The legal legislation that this definition comes from is the regulation "The use of any sign that is the same as a registered trademark in goods or services within the scope of registration" in item 7/2-a of the Industrial Property Law. Therefore, the use of the same sign of a registered trademark on goods or services for which the said trademark is registered, without permission, will constitute the crime of citation by the act of citing the trademark right.

Citations and Forms of Emergence

Citation relation is easier to prove than confusion. Because the most important criterion regarding citation is whether the mark on the goods or services of the registered trademark is the same as the mark on the act subject to the crime. It also does not address the issue of whether the receiver will confuse them. While not a limiting count, we will list the main causes that are important in determining the similarity between the signs.

a. Adding or Subtracting an Existing Mark.

Using the same sign of the trademark by making some additions to the sign currently used by the registered trademark generally indicates the existence of the act of citation. However, the point to be noted here is; is that the sign created by adding later is economically related to the registered trademark in a way that evokes the same good or service. For example; Let's assume that there is a brand called Vinegar Istanbul, whose subject is vinegar sales. The image of this brand will be the same, only the addition of the phrase "Vinegar" at the beginning and the vinegar to be sold with the sign "Sirkeci Istanbul" will constitute the act of infringing on the trademark right. In this regard, in the announcement dated 20.02.2007 and numbered 2005/11912 E. 2007/3207 K. of the 11th Chamber of the Supreme Court of Appeals, the local court decided that the registered trademark "BUFFALO" and the "BUFAALO" mark are similar to each other at a level that creates a citation.

b. Playing with the Sizes or Colors of the Signs on the Registered Trademark

1. There must be an existing and valid principal debt.

The situation here is that the size or color of the signs owned by registered trademarks is used by changing them. In cases where the color or brand drawings in the registered trademarks are used as a distinguishing or identifying element of that trademark, changing these colors or drawings may be perceived as a citation.

For example; If the shape of a cat in a clothing brand is used in different colors, it will be used exactly as in the citation verb. The same result will be achieved if this sign, which is also a distinguishing element, is used by others in different sizes.

Confusion Concept

The word confusion is explained as "resemblance" in the Türkish Language Society. While the resemblance is defined as “conformity, similarity, representation between two things at some points”, the verb to resemble means “to mix up two things that are very similar to each other”. Confusion based on definitions; can be explained as the mixing of two things that are similar to each other in various aspects because of their similarity.

Trademark Law No. 551 was repealed in trademark law 47/a-3. In its item, “Anyone who uses a trademark that is similar to a registered trademark of another person in a way that cannot be easily distinguished at first glance in terms of the general impression left by him, and which will confuse, shall be deemed to have used a similar trademark.” description is included. However, there is no definition of confusion in the Industrial Property Law. Başbüyük, on the other hand, is a similar use that causes rape by confusion; defined as creating the possibility of confusion that they belong to the same or related businesses.

Confusion and Emergence States

The situation to be examined in the determination of the state of confusion; is the use of the same mark of a registered trademark on similar goods or services. It is the possibility of confusion as a result of the use of a similar or similar sign on the same or similar goods or services belonging to the registered trademark. These possibilities, which will change according to the concrete event, will be discussed below in general terms.

a. Similar Sign

The concept of similarity does not mean that the registered trademark and the sign that commits the act of infringement are the same, but that the differences between the two signs are unnoticeable at first glance. The similarity in a decision of the 11th Civil Chamber of the Supreme Court; “Even if a sign is visually, phonetically or otherwise different, when approached from a "holistic" perspective, if for any reason it creates the impression that it has a connection with another brand in the eyes of the customer, and therefore it is effective in the customer's choice of goods or services, the brand may be registered as such.” explained as.

In the decision of the 11th Civil Chamber of the Court of Cassation regarding the nullity due to the risk of confusion, between the brands "NAPOLITEN" and "BUONO NAPOLITEN"; It has decided that the commodity classes and pronunciations are the same, there are signs similarity between the brands, so it will create confusion among the average consumers.

b. Similar Goods or Services

Similar goods or services can't confuse on their own. Because the basis for determining the risk of confusion is the confusion of the signs between the two brands by the public. As a matter of fact, in Article 7/1-b of the Industrial Property Law, "It is the same or similar to the registered trademark and covers the same or similar goods or services with the goods or services covered by the registered trademark, and therefore, there is a possibility of confusion, including the possibility of being associated with the registered trademark by the public". The regulation also shows that the important thing is the possibility of

We would like to conclude the issue with the approval decision of the Court of Cassation, stating that there is a possibility of confusion between the brands "ALIVE FOREVER" and "ALİFE" for similar goods or services. confusion in the eyes of the public, that is, the average consumer. In the decision; “Plaintiff's attorney in the main and conjoined cases; The trademark with the phrase "ALIVE FOREVER", numbered 2013/32922, applied on behalf of the defendant company, is similar to the trademark and logo with the phrase "ALİFE" and other brands with the phrase "A", which belongs to the client and has been used and known continuously since 2008. The objection made by the client to the announcement of this application of nature was rejected by the defendant institution with the decision of YİDK, that the brands are so similar that they cannot be distinguished, that the client company's "ALİFE" brand will come to life in the minds of the consumer who will see the aforementioned phrase, and that other brands and service providers belonging to the client company will be perceived as the same in terms of the logo. …

By the court of the first instance, according to the scope of the claim, defense, expert report, and the entire file; The defendant's application numbered 2013/32922 is similar to the plaintiff trademarks numbered 2008/63535, 2006/51770, and 2007/17021, the goods and services lists are of the same type and directly related as of the 09th and 35th classes covered by the application. Acceptance of the case because there is a possibility of confusion within the meaning of Article 8/1-b of Decree-Law No. 556 in terms of services, cancellation of YİDK's decision numbered 2015-M-6818, 09 and 35 where the trademark with the inscription "ɅLIVE FOREVER+Ʌ" numbered 2013/32922 is registered. It has been decided to be invalid in terms of classes.” After giving his statements, it was decided that there was no misconduct in the decision of the local court.

Resource

1- Başbüyük Isa, Criminal Liability for Infringement of Trademark Right, Adalet Yayınevi Ankara 2018

2- KAYA Arslan, Brand Law, Istanbul 2006

3- CENGİZ Dilek, Infringement of Trademark Right by Confusing or Citation in Turkish Law, Istanbul 1995

4- Supreme Court Judgments( http://www.sinerjimevzuat.com.tr)

5- Turkish Language Institution Dictionary ( http://www.tdk.gov.tr/ )