Under Turkish customs regulation, IP right holders can file an online centralised application before Customs to monitor counterfeiting activities on the Turkish borders. Such applications for monitoring registered trademarks and counterfeit goods must be filed before the General Directorate of Customs, which is an official body under the Ministry of Commerce.
Where Customs suspends the release of goods suspected of trademark infringement, whether on the application of a rights holder or ex officio, IP rights holders may file a criminal complaint or ask for a preliminary injunction to prevent the release of the goods and secure the seizure of the goods before Customs until the end of the court proceedings.
Combating counterfeiting activities
Filing a customs recordal is one of the most efficient ways to combat counterfeiting activities in Turkey, as IP rights holders:
- can obtain information regarding the precise locations through which the counterfeit goods have travelled; and
- stay informed of said activities by customs authorities under Customs Law 4458.
However, if goods are smuggled and suspended by customs officers or the police ex officio under the Anti-smuggling Law, IP rights holders cannot act against suspected counterfeiting activities. In such cases, the custom authorities or police suspend the smuggled goods under the Anti-smuggling Law and a public prosecutor initiates criminal proceedings on the grounds of smuggling.
Further, if smuggled goods are also counterfeits, IP rights holders are not systematically informed of these cases and the criminal case will proceed only on the grounds of smuggling provisions submitted to another regime in relation to the faith of the seized goods and may result in the release or re-selling of the goods at the end of the proceedings.
Within the scope of a criminal action initiated under the Anti-smuggling Law, the court orders the confiscation of the smuggled goods once the court action has been finalised and the goods become the subject of liquidation procedures. In Turkey, goods become subject of such procedures if:
- they are seized under the Anti-smuggling Law; or
- the customs transaction was completed illegally according to Customs legislation, irrespecitve of whether the goods were imported legally.
In such cases, the Directorate General of Liquidation (TASIS) may sell the goods – even if they are counterfeit – through its tender or e-tender system by virtue of the Liquidation Regulation.
The sale of counterfeit goods may be prevented if IP rights holders are aware of the suspended goods before TASIS and report any suspected infringements expeditiously.
This raises the question of how IP right holders may become aware of the suspended goods before TASIS. The simple answer is that IP rights can be recorded in order to keep rights holders informed of any liquidation decisions covering said rights via a notification before the goods are offered for sale. In addition, it is possible to check TASIS's e-tender system and follow up counterfeiting goods in order to take the necessary measures to prevent the counterfeit goods being introduced on the market.
Goods are mainly sold through TASIS's publicly accessible e-tender system. Further, TASIS currently has five retail offices in four districts (two in Istanbul, one in Edirne, one in Ankara and one in Kocaeli), all of which are open to the public.
A tender for 985 counterfeit watches was recently blocked 18 hours before the goods were supposed to be available for sale through the e-tender system. The IP rights holder was able to stop the sale before the beginning of the tender by closely monitoring the e-tender system and taking immediate action before the criminal courts. The counterfeit goods were seized by TASIS, as per the court's seizure order, and will probably be destroyed once the criminal court action has been finalised.
Where TASIS suspends the sale of goods at the request of an IP rights holder, the procedure is the same as border detention. In other words, IP right holders must institute an infringement action and obtain from the court a preliminary injunction order or file a complaint petition before a public prosecutor and obtain a seizure warrant from the Court of Peace within the given deadline to seize the goods until the action has been finalised.
To effectively combat counterfeiting activities in Turkey, IP rights holders must immediately inform TASIS if they suspect that counterfeit goods are being sold or counterfeiting activities are occurring on the Turkish borders.
