1. Definition and Importance: Trademark law regulates the rules governing the registration and protection of a trademark. The active use of a trademark after registration gives the trademark owner certain rights, but if a registered trademark is not used genuine, the trademark right may be weakened or canceled. Therefore, proving the use of the trademark is of great importance.
2. Proof of Use: The concept of “proof of use” in the Industrial Property Law is intended to encourage the genuine use of trademarks and to prevent bad faith oppositions. This requirement is applied in order to prevent the unfair acquisition of trademarks and to prevent unused trademarks from creating an unnecessary burden on the market. Proof of use, in the event of a trademark opposition, is the requirement for the opposing party to prove that it has genuine used the trademark in Turkey or that it has justifiable reasons for not using it. The registration of a trademark and its renewal pursuant to the IPL alone is not sufficient to protect the rights of the trademark owner. In order to protect the trademark, it must be used in the class of goods or services for which it is registered and this use must be proved. The trademarks must be genuine used by the trademark owner for the goods or services for which the trademark is registered within five years from the date of registration, and the trademark owner must continue to use the trademark for 5 years without a justifiable reason.
3. Situations and Legal Processes to Prove Use:
Situations and Legal Processes to Prove Use: Opposition to Publication and Proof of Use Defense: Trademark registration applications may be rejected upon the objection of the previous trademark owner when there is a possibility that the trademark applied for may be confused with a previous trademark. In this case, the applicant may request the previous trademark owner to prove that the trademark has been used for registered goods and services within the last five years. This request is called the “Proof of Use Defence”. If the opposing party cannot prove the genuine use of the trademark, the opposition is rejected and the applicant can register the trademark.
Proof of Use Defense in Trademark Infringement: According to the Code of Industrial Property, in cases of trademark infringement, the trademark owner may claim rights such as compensation for damages. However, these claims may not be valid unless the defendant proves the genuine use of the trademark.
Proof of Use Defense in Invalidation Case: According to the Code of Industrial Property, a trademark may be declared invalid based on absolute or relative grounds of refusal. In invalidation proceedings, the defendant may assert the Proof of Use Defence. If the plaintiff cannot prove the serious use of the trademark in the last five years, the trademark may be deemed invalid.
Grounds for Cancellation: Lack of genuine use of a trademark for five years may lead to partial or complete cancellation of the trademark. Cancellation requests have started to be submitted directly to TürkPatent as of 10.01.2024 and the jurisdiction of the judicial jurisdiction in this regard has ended. However, pending cancellation actions filed before 10.01.2024 will continue to be heard before the judicial jurisdiction.
4. Situations without Proof of Use: Proof of use requires a showing of substantial use during the relevant period. Merely using the trademark to register it or using it symbolically does not meet this obligation. For example, it is usually not sufficient to prove the use of a trademark that has been used only a few times.
5. Legal Consequences: Although the term of protection of trademarks under the IPL is 10 years, failure to use the trademark seriously in Turkey for 5 years may result in the loss of the trademark and the termination of the trademark owner’s fundamental right to the trademark. In addition, in compensation lawsuits filed due to non-use of the trademark, judgments may be rendered against the trademark owner.