The 11th Chamber of the Turkish Appeals Court ("Appeals Court") has clarified the uncertainty regarding non-use cancellation claims for trademarks that had been caused by confusion since 2017 over the effective dates of two (2) laws.
On 14 June 2019, Appeals Court ruled that cancellation clauses for trademarks unused for at least five (5) years will be considered retroactive if the trademarks were applied for between the annulation of the first law (of 6 January 2017) and the second law (of 10 January 2017).
Under Turkish law (Article 9 of Industrial Property Law No. 6769 of 10 January 2017), cancellation actions are possible for trademarks that have not been used for five (5) years after the registration date.
Before 10 January 2017, non-use cancellation claims were regulated under Article 14 of Decree-Law No.556 (Repealed Decree-Law), which was abolished by the passage of the above IP Law.
However, Article 14 of the Repealed Decree Law was also annulled by a decision of the Turkish Constitutional Court that came into effect on 6 January 2017.
This, however, left a four-day legal gap that existed between the abolishment of Article 14 of the Repealed Decree Law and the issuance of the IP Law, which in turn resulted in court action that was finally resolved on 14 June 2019 by the Appeals Court.
In its ruling, the Appeals Court decided that the aim of Article 9 of the IP Law is to clean up the Trademark Registry of unused trademarks. Prior to this law, the aim of the Repealed Decree Law was to cancel for at least five (5) years unused trademarks. Hence, the Appeals Court ruled that the will of the lawmakers must be taken into account regarding the four-day gap.
The Appeals Court also decided that although the principle of non-invulnerability of laws has been adopted as a rule, when laws have prospective consequences the Turkish Grand National Assembly can issue a retroactive law.
The Decision of Appeals Court appears to be binding – at least, until a contrary decision is passed – since no challenge has been lodged with the Constitutional Court regarding trademark cancellation lawsuits due to non-use.
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