What Can Be Done in the Event of Trademark Infringement? Proceedings, Injunctions and Damages

What Should You Do First If Your Trademark Is Being Used Without Authorisation?

If you see your trademark in an e-commerce listing, on a competing business’s sign or on a social media account, merely taking a screenshot immediately may not be sufficient. You should first establish who is using it, for which goods or services and for how long. The trademark register entry and the commercial details of the person committing the infringement should also be checked.

The Industrial Property Code (SMK) entitles the trademark proprietor to seek a determination of infringement, cessation of the infringement and remediation of its consequences. However, not every similar use constitutes infringement. The goods and services covered by the registration, the degree of similarity between the marks and the commercial effect of the use are assessed together. A formal notice served through a notary may be useful, but it is not generally a prerequisite for bringing civil proceedings.

Which Uses Constitute Trademark Infringement?

Use of an identical registered sign for identical goods or services is the clearest example of infringement. The use of similar signs may constitute infringement if the public is likely to assume a connection between the businesses or confuse them. The assessment is not based solely on the words. The appearance, pronunciation, meaning and dominant elements of the signs, together with the relevant consumer group, are considered as a whole.

Affixing the sign to goods or their packaging, offering the goods for sale, stocking them, or importing or exporting them may fall within the scope of infringement. Use in advertising, trade names, business names, domain names and keywords may have the same result if it produces a commercial effect. Trademarks that have attained the requisite level of recognition may, subject to certain conditions, also be protected against use for different goods and services.

Honest and ordinary commercial use is assessed differently. The use of a person’s own name, a description of a product’s characteristics or an indication of the intended purpose of a spare part cannot be prohibited in every case. As a rule, the resale of genuine goods placed on the market with the proprietor’s consent is also covered by the exhaustion of rights. Alteration or impairment of the goods may change this outcome.

Is the Registration Certificate Sufficient on Its Own?

Trademark protection is obtained through registration as a rule. However, the fact that the other party subsequently registered a similar sign in its own name does not automatically provide a defence against the proprietor of the earlier right. The priority of the earlier right is assessed separately by reference to the history of registration and use. For unregistered signs, prior use, trade name rights and unfair competition provisions may provide different forms of protection.

If five years have elapsed since the registration date, the defendant may argue that the trademark has not been put to genuine use. Where this defence is raised, the trademark proprietor may be required to demonstrate genuine use in relation to the relevant goods or services. Invoices, catalogues, advertising records, sales documents and dated online content should therefore establish not only the infringement but also the proprietor’s use of the trademark.

How Is Trademark Infringement Proved?

Online content may be altered or removed quickly. Screenshots should display the web address, date, seller details, product description and price. Listing links, advertising records, domain name information, correspondence, invoices and sample goods should be retained together. Where necessary, a notarised record or a court-ordered preservation of evidence (delil tespiti) may be sought.

For physical sales, a test purchase, receipt or invoice, product packaging and store information become important. Evidence must be obtained lawfully. Accessing another person’s account without authorisation or creating an unlawful recording may prevent the resulting evidence from being used. Records concerning the duration of the infringement and sales volume also directly affect the calculation of damages.

What Claims May Be Brought in Cases of Trademark Infringement?

The rights holder may seek a determination that the act constitutes infringement and an order stopping any continuing use. Preventive relief may also be sought in respect of a potential infringement. The seizure of infringing goods and equipment used exclusively to manufacture them may be requested. Removal of the trademark, alteration of the form of the goods or, where unavoidable to prevent infringement, destruction may also be considered.

Destruction is not an automatic consequence. The court considers the specific relief sought, the nature of the infringement and proportionality. Publication of the final judgment may also be requested where there is a legitimate reason or interest. The majority in judgment numbered 2025/4267 on the merits and 2026/1027 as to the decision, issued by the 11th Civil Chamber of the Court of Cassation (Yargıtay 11. Hukuk Dairesi), held that the SMK and unfair competition provisions could not be applied concurrently where the matter fell within the same scope as registered trademark protection. The legal basis of the claim should be formulated in light of this current approach.

Can the Infringement Be Stopped Before the Proceedings Conclude?

Continued sales during the proceedings may increase the loss. By establishing on a prima facie basis that infringement has occurred or that serious and effective preparations have been made for it, the rights holder may seek a preliminary injunction (ihtiyati tedbir). The court may order that sales cease, listings be removed or goods be placed in safekeeping. Security may be required for the injunction.

An injunction may also be sought before the main proceedings are commenced. In that event, the main action must be brought within the statutory follow-up period and the required procedural steps must be completed in time. The seizure by customs authorities of imported counterfeit goods may also fall within the scope of the injunction. As delay may increase both the number of goods on the market and the difficulty of proving the infringement, evidence gathering and preparations for injunctive relief should proceed together.

How Are Damages Calculated and Which Time Limits Apply?

Pecuniary loss includes actual loss and loss of profit. The rights holder may select one of three methods of calculation. The calculation may be based on the probable income that would have been earned in the absence of the infringement, the infringer’s net profit or a hypothetical licence fee. A rights holder whose trademark reputation has been harmed by detrimental use may also claim compensation for damage to reputation. A claim for non-pecuniary damages may also be assessed in light of the circumstances of the case.

Judgment numbered 2023/5294 on the merits and 2024/9126 as to the decision, issued by the 11th Civil Chamber of the Court of Cassation, states that commercial books and financial records must be examined when applying the net profit method. If the amount cannot be calculated precisely, the court must determine an amount appropriate to the particular case under the Turkish Code of Obligations (TBK). Therefore, the assertion that “the loss could not be calculated” does not justify dismissal of the damages claim in every case.

For private law claims, the SMK refers to the limitation periods under the TBK. As a rule, the applicable periods are two years from the date on which the loss and the person responsible are learned and ten years from the date of the act. If the act also constitutes an offence subject to a longer limitation period, that period may apply. For continuing use, the commencement date is determined according to the particular circumstances.

If the damages claim constitutes a commercial action for the payment of money, mandatory mediation as a prerequisite to proceedings (dava şartı arabuluculuk) applies under the Turkish Commercial Code (TTK). Where claims for cessation and damages are brought together, the structure of the relief sought must be examined separately. Criminal proceedings are distinct from civil proceedings. Trademark offences require registration in Türkiye and a complaint. Under the Turkish Criminal Code (TCK), the six-month period for filing a complaint begins when both the act and the offender are learned.

Frequently Asked Questions