CUSTOMS AND COMBATING COUNTERFEIT
In order to protect the industrial and intellectual property rights such as trademarks, patents, utility models, industrial designs, copyrights efficiently in Turkey and in order to avoid the entrance of the counterfeit goods to the market while they are still at the Custom Offices, the legal actions can be started with the customs.
With its specialized and experienced attorneys, Başalan Law Office follows all the registration and protection procedures with the Custom Offices and please feel free to contact with our office to have more information in this matter.
Recent Developments in Combating Counterfeiting and the Institution of TASİŞ
In our country, there have been significant changes, especially between 2013 and 2017, regarding the innovations and changes brought by the Industrial Property Law No. 6769, as well as the counterfeit products confiscated under the Smuggling Law No. 5607 and the Customs Law No. 4458. The subject of this article is “TASİŞ” with its short name, and with its official name, General Directorate of Liquidation Services (Works), some important changes have been made regarding the sales of counterfeit branded products, which concern the trademark right holders. With these changes, we leave it to you to decide to what extent the rights of the trademark right holders are protected or whether they are infringing.
“TASİŞ” was established under the name of General Directorate of Liquidation Affairs Revolving Funds Enterprises on 24.05.1984 under the Law No. 3007 under the Ministry of Finance and Customs, it became the main service unit of the Ministry of Finance in accordance with the 17th article of the Decree Law No. 178, and was later affiliated to the Undersecretariat of Customs with the Law No. 5622. It was restructured as the General Directorate of Liquidation Services with the Decree on the Organization and Duties of the Ministry of Customs with the Article numbered 640, and new powers and duties were given with the Decree No. 649. The regulation published in the Official Gazette dated 25/06/2013 and numbered 28688, use the Custom Law numbered 4458, Smuggling Law numbered 5607 and Decree Law numbered 640 and dated 3/6/2011 as base and its purpose is to determine the procedures and principles regarding the collection, storage and delivery of goods to temporary storage places, warehouses and warehouses operated by the customs administrations and the liquidation of the goods that have become liquidated.
In our country, there are criminal sanctions for industrial property crimes only in terms of trademarks. This sanction only depends on the trademark owner's trademark being registered in our country and having a complaint based on this registration. In all customs units of Turkey affiliated to the Ministry of Commerce, pursuant to the 57 and related articles of the Customs Law, counterfeit branded products are seized upon the complaint of the right holders to the relevant Chief Public Prosecutor's Office and these products are destructed after criminal or civil proceedings. With the E-Application system on the Protection of Intellectual and Industrial Rights at Customs, officially named, and abbreviated as Annex-13, which recognized to trademark rights holders within the framework of the Customs Law, trademark right holders are informed about the counterfeit branded products, which are stopped ex officio in any customs of Turkey, by the customs administration performing the transaction as a result of their rights previously granted by the right holders to the system and can use their right to complain about that transaction. In the TASIS system, before 2014 and until 2015, the owners of the trademark rights could not be informed of the sales transactions of this institution and confiscated as a result of the Anti-Smuggling Law, and the release of these products to the market could not be prevented.
As a result of all these developments, correspondence and meetings were held with the trademark right holders, who contacted the Ministry officials, both to prevent their own grievances and to solve the problems related to counterfeit branded products and at the end of this process, since 2015, TASIS has given right holders the right to register their intellectual and industrial property rights with the institution. With this right, the information of the counterfeit branded products to be put up for sale in the tenders to be made from the relevant TASIS units has started to be given to the trademark right holders via mail. In this context, TASIS informed the beneficiaries and prevented the sale of counterfeit products through liquidation in cases where it took action within the complaint process granted to the beneficiaries. Although it was an important development for that period, the trademark rights violations of the right holders could not be completely prevented. As a result of the both discussions ministry officials and trademark rights holders and meetings subjected “Protection of Intellectual and Industrial Rights in Customs Project” which performed between EU and Turkey between the years of 2016 – 2017, all TASIS units have access to the ANNEX-13 system protection applications submitted by the right holders to the General Directorate of Customs with a new regulation put into effect by the General Directorate of Customs on July 12, 2017. With this regulation, right holders will now have the right to inform before the tender sales and will be able to use their right to complain.
As a result of these regulations, we can say that the hand of trademark rights holders in the fight against counterfeiting has become stronger. With the rights mentioned above, the cooperation between the state and trademark rights holders has been strengthened compared to previous periods. As a result of the rights granted by TASIŞ in the new period, it would be more effective to open a separate investigation for the seized products of the people who trade counterfeit products pursuant to the Smuggling Law, by informing the trademark right holders in advance, and to punish them separately for both crimes. Thanks to the notifications to be made from TASIS in addition to the notifications made from the customs, the effectiveness of the trademark right holders in the fight against counterfeiting will be further increased.
Namely, although the trademark right holders are informed by TASIS before the imitation branded product sales tender is held, In the tender announcements, a warning should be made to the persons and institutions that plan to purchase these products, stating that "these products for sale may violate the intellectual and industrial property rights specified in the Industrial Property Law and other laws, and in case of purchase, they may face criminal or legal processes". In this way, even if the trademark right holders miss the complaint process or cannot access the tender process, it will be prevented that they encounter the person or institutions that purchase those products in the field of trade later on. While we think that this pre-warning notification is a deterrent, it will also prevent the contradictory actions and trials of the judicial authorities and units of the state.