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Ambiguity Between Brands in Supreme Court Decisions

Mustafa Yolcu
Markalar Arası İltibas

Confusion Between Trademarks in Supreme Court Decisions | İzmir Lawyer | Izmir Law Firm

The Concept of Confusion

noun, archaic, (iltiba:sı), Arabic iltibās

Similarity.

In Turkish law, the term "confusion" refers to causing confusion or association with a registered trademark. When confusion occurs, the individual mistakenly believes that the registered trademark and the trademark causing the confusion are not different in terms of goods and services, and that they represent the same subject.

Confusion Between Trademarks Under Legislation

Actions considered as trademark infringement
Article 29– (1) The following acts are considered infringement of trademark rights:
a) Using the trademark in the forms specified in Article 7 without the permission of the trademark owner.
(b) Counterfeiting a trademark by using the trademark or a mark that is indistinguishable from it, without the permission of the trademark owner.
c) Selling, distributing, otherwise placing into the market of commerce, importing, exporting, possessing for commercial purposes, or offering to enter into a contract for products bearing a trademark that has been infringed upon by knowing or having reason to know that the trademark has been counterfeited by using the trademark or a mark that is indistinguishable from it.
c) Unauthorizedly extending rights granted by the trademark owner through licensing, or transferring these rights to third parties.
(2) The provision of the second paragraph of Article 19 may be raised as a defense in infringement cases. In this case, the date of the lawsuit is the basis for determining the five-year period of use.
It is taken.

INDUSTRIAL PROPERTY LAW

Ambiguity Between Brands in Supreme Court Decisions

Turkish Supreme Court, 11th Civil Chamber, Case No. 2015/6266, Decision No. 2016/81

In this specific case, the plaintiff relied on the trademarks with "ZARA" as the primary element, while the trademark subject to the defendant YK's registration application consists of the phrase "AZARA GOLD". Accordingly, while it should be accepted that there are differences in spelling and pronunciation between the signs, as well as no semantic similarity, and that the collective impression of the signs does not have a similarity to the extent that it would create a risk of confusion, the decision to accept the case with the written justification was incorrect, and the decision should be overturned.

SUPREME COURT OF APPEALS, 11TH CIVIL CHAMBER, CASE NO. 2011/15498, DECISION NO. 2013/11572

The application in question refers to a name that translates to "Ms. İnce" in Turkish.“The trademarks in question consist of the words "Miss Slim". The trademarks on which the plaintiff objects contain only the primary element "Mis".. According to Article 8/1-b of Decree Law No. 556, in assessing whether there is a risk of confusion between the signs, the visual, auditory, semantic, and written similarities between the signs in question, as well as the general impression the signs leave on the average consumer of the products as a whole, must be taken into consideration. In the specific dispute, the signs... It has been observed that there are semantic differences, as well as no similarity in terms of spelling and pronunciation; furthermore, the collective impression given by the signs does not have a similarity to the extent that it would lead to a risk of confusion. In this respect, while the lawsuit should have been dismissed, its acceptance with the written justification was incorrect, and the decision must be overturned.

SUPREME COURT OF APPEALS, 11TH CIVIL CHAMBER, CASE NO. 2012/13202, DECISION NO. 2013/10026

The plaintiff's attorney stated that the plaintiff's trademark application for "CAN KÖFTE AKHİSAR+shape" was rejected by the Turkish Patent and Trademark Office on the grounds that it was indistinguishable from the trademark "CAN ŞEKERLEME" belonging to a third-party company, in accordance with Article 7/1 (b) of Decree Law No. 556; that the plaintiff's appeal against this decision was finally rejected by the Turkish Patent and Trademark Office; and that the plaintiff argued that there was no similarity to the trademark cited as the reason for rejection, and therefore requested and sued for the annulment of the relevant decision of the Turkish Patent and Trademark Office regarding the rejection of the application and for a decision to publish the plaintiff's trademark application..., It is not at a level that would be indistinguishable at first glance to the average consumer group with general consumer characteristics., The court ruled to accept the case and annul the decision of the TPE Administrative Court No. 2011-M-3498 on the grounds that the TPE conducted the review ex officio, which it could only do in case of an objection according to Article 8/1-(b) of the same Decree Law… For the reasons explained above, all the appeals of the defendant's attorney are rejected and the judgment, which is in accordance with the procedure and the law, is AFFIRMED…

SUPREME COURT OF APPEALS, 11TH CIVIL CHAMBER, CASE NO. 2015/3353, DECISION NO. 2015/9386

Based on the claims, defenses, collected evidence, the expert report adopted by the court, and the entire case file, the court determined that the scope of registration of the applicant trademark and the plaintiff trademark are the same type, but they are semantically different., Despite the commonality of the word "N..." in the application mark, the additional word creates visual, conceptual, and auditory differences; therefore, pursuant to Article 8/1-b of Decree Law No. 556, there is no likelihood of confusion between the marks. Furthermore, although it was argued that the mark was well-known, the applicant's mark, when considered as a whole, is not similar to the applicant's mark, and Since the existence of the risks mentioned in Article 8/4 of the Decree Law could not be proven, it is not possible to apply this article., Although the plaintiff sought to benefit from the provision in Article 8/5 of the Decree Law due to the fact that the trade name of the company included the phrase "N...", the court ruled to dismiss the case on the grounds that the phrases "N..." and "N..." do not resemble each other as a whole, and since the plaintiff company could not prove that it engaged in any activity related to the goods and services covered by the registration, this article was not applicable.

SUPREME COURT OF APPEALS, 11TH CIVIL CHAMBER, CASE NO. 2016/222, DECISION NO. 2017/3858

Based on the claims, defenses, expert report, collected evidence, and the entire case file, the court determined that the images or packaging of the products in question can also be registered as trademarks, and that the application should be accepted., The court ruled to dismiss the case on the grounds that the plaintiff's trademark, design, and actual products and packaging bear no resemblance whatsoever to the mark; that there is no auditory, visual, conceptual, or general impressionistic similarity to the mark and sign that would lead to the perception that they belong to companies administratively and economically connected to each other; that it is not possible to establish a connection between these signs; and that the plaintiff failed to prove its claims of similarity, recognition, and bad faith application.

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