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09 December 2019
Turkey has adopted a number of regulations to combat online counterfeiting and determine internet service provider (ISP) responsibilities.
Law 5651 on Regulating Broadcasting on the Internet and Fighting against Crimes Committed through Internet Broadcasting (the Internet Law) regulates content providers and ISPs to prevent the broadcast of illegal content that violates the personal rights of natural persons and legal entities (Article 9 of the law, as amended on 6 February 2014).
The Internet Law also provides detailed provisions on the listed offences (or catalogue crimes) that put personality rights and privacy at risk, including:
As the wording of Article 9 of the law also includes "personal rights the legal entities" and considering the fact that illegal content could infringe legal persons' industrial property rights, names and reputations, trademark rights can fall under the scope of this regulation if they are interpreted as being the personal rights of legal entities.
According to the Internet Law, if a natural person or legal entity suspects that their rights have been infringed but fails to contact the content provider in question, the ISP must respond to the rights holder within 24 hours and remove the unlawful content. In other words, the so-called 'notify and remove' principle is accepted under Turkish law.
The criminal courts must issue a decision on the rights holder's request within 24 hours. The Information and Communication Technologies Authority then forwards the decision to the ISP. ISPs which fail to implement authority decisions within four hours may face a judicial fine.
However, in practice, the criminal courts do not consider trademark rights to be personal rights of legal entities under Article 9 of the Internet Law, as it makes no clear reference to trademark counterfeiting.
Industrial Property Code 6769 (the IP Code), which entered into force in January 2017, makes no reference to takedown requests in case of trademark infringement. However, Article 7/3(d) of the IP Code applies to trademark use on the Internet. Under this provision, rights holders may request to prevent a third party without permission or a legitimate relationship to the mark from using an identical or a similar mark on the Internet (including domain names, metatags and keywords) to cause a commercial effect. Nevertheless, there is still no clear regulation regarding the prohibition on publishing content on the Internet that would constitute trademark infringement.
Therefore, in practice, rights holders must pursue civil routes by requesting a preliminary injunction to block access to infringing content, which is a relatively indirect and long process.
Article 4 of the Law on Intellectual and Artistic Works (5846) (the Copyright Act) regulates online copyright infringement takedowns relating to, for example:
In cases of online infringement, rights holders may request the content provider to remove the infringing content within three days. If the content provider fails to respond to the request by this deadline, the rights holder may submit a request to the competent public prosecutor to grant an order against the ISP to block the content provider's internet access.
In a nutshell, the current system is inconsistent due to the different interpretations of whether counterfeiting falls within the scope of Article 9 of the Internet Law. To avoid inconsistent decisions with respect to trademark infringement takedown requests, Article 9's scope must be clarified – specifically as it relates to trademark counterfeiting – or a new article should be added to the IP Code, as per the Copyright Act which includes a specific provision regulating the takedown process for online copyright infringement.
For further information on this topic please contact Okan Can or F Burcum Evgin at Deris Attorney At Law Partnership by telephone (+90 212 252 6122) or email (firstname.lastname@example.org or email@example.com). The Deris Attorney At Law Partnership website can be accessed at www.deris.com.tr.
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