I-INTRODUCTION
With the development of commerce in the entire world, trademark protection has gained significant importance. As it is known that protection related to industrial property rights including trademark has been regulated in Industrial Property Code.[1] Pursuant to the most general definition, trademark provides to distinguish goods and services of an undertaking from others. [2] Because of growing market conditions, the reputation of trademark started to become more important than it was before. Consumers are firstly focusing on the trademarks in the course of purchasing products in today’s world. Because of these reasons, enormous competition races occurred based on trademark in the world.
Within aforementioned race, some undertakings started to imitate different undertakings’ goods and services; they also started to gain unfair advantage from the different undertakings’ trademark reputation. In other words, these undertakings have been infringing on different undertakings’ trademark rights by imitating the goods and services or gaining an unfair advantage from trademark rights or etc. Infringement of trademark rights may occur in many versions. As it is known that one of the most seen versions of trademark infringement is the likelihood of confusion of trademark which takes place in article 7/2-b of Industrial Property Code(IPC) .[3] Therefore; it could be expressed that it is an important issue to determine and examine in what conditions the likelihood of confusion occurs in accordance with article 7/2-b of IPC.
Due to stipulated reasons, in this study, firstly it will be examined legal nature of trademark right and acquisition and termination of trademark right; secondly, versions of trademark infringement will be mentioned shortly; thirdly the concept of likelihood of confusion, conditions of the likelihood of confusion and application of court of cassation will be discussed; finally, entire issues mentioned in this article will be discussed and proposals will be given with respect to the gaps in the literature.
II- LEGAL NATURE OF TRADEMARK RIGHT
The right could be defined as a legally protected benefit that grants its owner a right to exercise it over other people.[4] It is accepted in the doctrine that trademark right is grounded on private law norms.[5] As it is known that there are two types of legal rights which are absolute rights and relative rights; while absolute rights could be contended against everyone, relative rights could be contended only against relevant individuals; despite, entire statutory restrictions, trademark right is a type of right which is measurable in money and could be contended against everyone, and the owner of the trademark has a chance to prohibit or restrict everyone to use of his/her trademark. [6] Pursuant to Article 148/1 of IPC, trademarks are subject to various legal transactions; they could be transferred to a third party, transferred by inheritance, become subject to license, put in pledge, shown as collertral and etc.[7]
Since the trademark right is an absolute right, commencement of trademark rights is also an important issue. Two different types of systems have been accepted with respect to the acquisition of trademark rights; in the first system trademark rights will be gained through being first user, but in the second system trademark rights shall be acquired by registration.[8] In other word, according to the registration system, trademark rights shall be gained on the date of registeration, in the other system, trademark rights shall be gained on the date of first usage.[9] Article 7/1 of the IPC states that; “Trademark protection provided by this Code shall be acquired by registration”. Therefore; it could be expressed that the registration system is accepted under Turkish Law. However, there are several exceptions at IPC; firstly, pursuant to Article 6/2 of IPC, in case identical or indistinguishably similar trademark application will be made by a commercial agent or representative with his/her own name, the trademark application shall be refused by the opposition of trademark owner; secondly, pursuant to Article 6/3 of IPC, by the opposition of holder of non registered trademark, the new application shall be rejected; and thirdly, pursuant to Article 6/3 of IPC, by the opposition of holder of a well-known trademark, the new application shall be rejected.[10] So, it could be explicitly expressed that although the registration system is accepted at IPC, there are various exceptions.
The principle of territoriality is accepted at IPC; therefore, any trademark is only protected in the country where it was registered out of exceptions. [11] So, it could be explicitly mentioned that pursuant to IPC, Turkey’s trademark rules could only be acceptable over trademarks that are registered in Turkey; it is also similiar in EU protection system.[12] However; it coud be explicitly mentioned that well-known trademarks according to Paris Convention is an exception for this rule.
Lastly, termination of a trademark is also an important issue for trademark rights; it could occur in various ways. Firstly, it could be realized by not renewing the trademark within the period mentioned at IPC. According to article 23 of IPC, protection for registered trademark is ten years from the date of application, and article 23/2 of IPC states that; “Request for renewal needs to be made by the trademark proprietor within six months before the expiry of the protection date and the information regarding the payment of the fee needs to be submitted to the Office within the same period. In case no request is made or the information regarding payment of the renewal fee is not submitted to the Office within this period, renewal request may be made within six months after the expiry of the protection date, provided that an additional fee is paid”. Secondly, the trademark right could also be terminated by an invalidation and revocation; while article 25 of IPC includes grounds for invalidation, article 26 of IPC involves grounds for revocation.[13] However, there is a difference in effect of invalidation and revocation of trademark. According to article 28/1 of IPC, decision related to invalidation shall be effective from the application date of trademark; however, decision related to revocation shall be effective from the date of submission to the Office or court unless conditions for revocation has emerged at an earlier date. Thirdly, the last ground for termination of a trademark is surrendering; pursuant to article 28 of IPC, the owner of the trademark has a right to surrender his/her trademark partial or entirely.[14]
In this part, legal nature of the trademark has been described shortly with commencement and termination of trademark right, in the next part of the article grounds for trademark infringement shall be explained shortly.
III-GROUNDS FOR TRADEMARK INFRINGEMENT
With the development of commercial life in the 21st century, trademark infringement has become a significant issue in the entire world. Legal systems started to improve their laws in accordance with this development. Within the frame of this development, Industrial Property Code numbered 6769 entered into force in 10.01. 2017 in Turkish law. Pursuant to article 7/2 of IPC trademark infringment could happen in various ways. Grounds for trademark infringenment will be given below;
- “Use of any sign identical with the trademark at goods or services that are in the scope of the registration” (Article 7/2-a of IPC)
- “Use of any sign identical with or similar to a registered trademark and covering identical or similar goods or services with the registered trademark, and is therefore liable to create a likelihood of confusion on the part of the public; including the likelihood of association between the sign and the trademark.” (Article 7/2-b of IPC)
- “Use of any sign identical with, or similar to the registered trademark, irrespective of being for identical, similar or different goods or services, where the use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark due to the reputation it has in Turkey.” (Article 7/2-c of IPC)
As it can be seen above that there are various infringement grounds at IPC. However, in practice likelihood of confusion derived from article 7/2-b is mostly seen. [15] Because of this reason in this article, conditions related to likelihood of confusion derived from article 7/2-b will be examined.
IV-LIKELIHOOD OF CONFUSION PURSUANT TO 7/2-B OF IPC
As it is explain above, article 7/2-b of IPC states that; Use of any sign identical with or similar to a registered trademark and covering identical or similar goods or services with the registered trademark, and is therefore liable to create a likelihood of confusion on the part of the public; including the likelihood of association between the sign and the trademark.”. Therefore, pursuant to the aforementioned article, In order to occur the likelihood of confusion, subsequent trademarks must meet some conditions; 1) there must be “any sign”, 2) relevant sign must be “identical with or similar to a registered trademark” 3) new trademark must be “identical or similar goods or services with the registered trademark” 4) new trademark must create “likelihood of confusion on the part of the public”[16]
Also, according to article 16.1 of Paris Convention, owner of registered trademark has the exclusive right to prevent third parties to use signs identical or similar to the registered trademark in the course of trade for goods or services which are identical or similar; this causes the likelihood of confusion.[17]
As it could be seen in both articles taking place at IPC and Paris Convention, the likelihood of confusion could be defined that since registered trademark and subsequent trademark are the same or similar to each other due to their figures, appearances, sounds, general impression, etc, it is a risk that a sign or a registered trademark is the same/similar to a previously registered trademark or it is a risk that they come from the same source.[18] In order to define likelihood of confusion Court of Justice of the European Union (CJEU) also states that “Accordingly, the risk that the public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically-linked undertakings, constitutes a likelihood of confusion within the meaning of Article 4(1)(b) of the Directive.”[19]
In case both goods and services and signs of a registered and subsequent trademark are the same, the existence of a likelihood of confusion is directly accepted.[20] However, if signs are the same goods and services are similar or both signs and goods and services are similar or goods and services are same signs are similar, infringement and the likelihood of confusion are determined separately in every case.[21] In the second situation, various factors have to be taken into consideration. In these circumstances, in order to determine the likelihood of confusion, certain criterias are evaluated. According to doctrine, in order to evaluate the similarity within the frame of general impression, global impact shall be taken into consideration.[22] In this context, while examining and contrasting two (2) trademarks with respect to the likelihood of confusion, it shall be evaluated that whether signs of trademarks are similar as visual, phonetic, or conceptual or not within the frame of general impression according to the average consumer, and secondly, it shall be evaluated that whether goods and services are similar or not, thirdly level of attention of the average consumer shall be taken into account.[23] Lastly, the distinctive nature of the sign is taken into account while examining similarity of two trademarks; for instance in the decision of the Court of Cassation, supreme court has upheld the decision of first instance which awarded “SEMT” and “SEMTAŞ” trademarks were similiar and main and distinctive component of aforementioned trademarks were same which was “SEMT”.[24]
A-Types of Confusion
Types of confusion could be explained with three(3) headings. These headings could be expressed as direct confusion, indirect confusion, and confusion in broad terms.
1-Direct Confusion
This type of confusion is related to the origin function of trademark.[25] In this type of confusion, the average consumer supposes that due to the sameness or similarity between subsequent and previous trademark, subsequent and previous trademark belong to the same undertaking; they fall into the error that the goods and services are originating from the same undertaking because of aforementioned similarity and sameness.[26] In other words, average consumers notice that both of the trademarks are different; but they consider that they are produced and marketed by the same undertaking.[27]
2-Indirect Confusion
Indirect confusion is also related to origin function of trademark. In this type of confusion average consumers consider that signs and trademarks are different, but they think that goods and services including aforementioned trademarks belong to the same undertaking or there is an economic or organic connection between both of the undertakings.[28] In other words, consumers distinguish trademarks from one another; but due to the similarity between the signs, avarage consumer considers that trademark owner make restrictions on his/her trademark and create serial trademarks; average consumers consider that and these are originated from same or connected undertaking; for instance, Sabancı Holding has a lot of trademarks which are created by adding SA suffix at the end of different phrases like “LASSA”, “TEKNOSA” and “İKLİMSA”.[29]
3- Confusion in Broad Terms
In this type of confusion, average consumers can distinguish both trademarks and undertaking from one another but, they consider that there are special economic ties or tight corporation relationships between undertakings; the aforementioned argument is mostly used in order to protect well-known trademarks.[30] Average consumers suppose that there is a license agreement between trademark infringer and the one whose trademark right is infringed.[31] For example, although, “Zorlu Tekstil Company” has used “HARRY POTTER” without being granted any licence or getting permission, average consumers can distinguish “HARRY POTTER” and “LINENSE HARRY POTTER” trademarks; but they could suppose that there is a licence agreement between HARRY POTTER” and “Zorlu Tekstil Company”; this is an example of confusion in broad terms.[32]
B-Elements of Confusion
In order to express whether there is a trademark infringement or not via likelihood of confusion, it should be examined that whether there is same/indistinguishable similar/similar sign and same/indistinguishable similar/similar goods and services or not; it should be examined also whether aforementioned signs and goods and services create via likelihood of confusion or not. Related elemets will be examined below;
1-Same Signs
Pursuant to article 7/2-b of IPC, the owner of the trademark is entitled to claim prevention to use of any sign identical with or similar to a registered trademark in case the aforementioned usage does not include permission or consent. As it is known that term of same is obvious; in case there is sameness between two trademarks, the signs have to be identical and could not include different components.[33] However, the term of “indistinguishably similar” is not obvious like “same”; scholars have different opinions related this issue. Tekinalp thinks that they are entirely same and there is no slight difference.[34] However, according to Arkan, arranging essential elements of the trademark in different sizes or in different text forms, or in other colors does not remove the sameness of trademarks. [35] Yasaman, however, expresses that differences such as writing style do not remove sameness.[36] In the decision of the Court of Cassation, Supreme Court found same the signs “POVER pack and “pover pack”.[37] In another decision of the Court of Cassation found indistinguishably similar the signs “POWER” and “Şekil+Filter Cigarettes POWER Virginia Blend” since the phrase “power” comes to the fore.[38] It could be also accepted that there is indistinguishable similarities between the trademarks such as “LÜKS” and “LUX” , “CHANEL” and “ŞANEL”.[39]
2-Similiar Signs
Pursuant to article 7/2-b of IPC, similarities between trademarks could occur in three(3) forms which are visual, phonetic and conceptual; but the existence of one of the aforementioned similarities is sufficient in order to occur likelihood of confusion.[40] As it will be explained below examination of similarity is done by taking into account the average consumer.[41] In the course of examination of the likelihood of confusion, similarities rather than differences should be taken into account.[42] Three(3) forms of similarities will be explained below;
a)Visual Similarity
In case, there is a visible figurative similarity between two(2) trademarks, visual similarity occurs.[43] Visual similarity is one of the most common similarities in the course of examining the likelihood of confusion.[44] As it is known that article 4 of the IPC states that “the trademark may consist of any signs like the shape of goods or their packaging and in case the goods or packaging has a unique shape”. Therefore, it could be mentioned that similarities solely in packaging and shape could cause the likelihood of confusion. [45] As a result, it could be expressed that visual similarity could occur from the similarity in letters, words, pictures, logos, any kind of shape or etc.[46]
For example, the Court of Cassation has awarded that trademarks “FLO” and “FLOVE” are similar due to visual and phonetic similarity.[47] In another decision of the Court of Cassation, the Supreme Court awarded that since there is a visual and phonetic similarity between “BERRY” and “GİLEETRE BLACKK BERRYY”, the likelihood of confusion occurs.[48] Also, in the another decision, the Court of Cassation awarded that trademarks and similiar because of visual similarity. [49]
b)Phonetic Similarity
As it was explained above that visual similarity has a great importance to determine likelihood of confusioun; but phonetic similarity is also important to determine likelihood of confusioun. The phonetic similarity is a similarity that forms as a sound effect in the ears of average consumers due to pronunciation of trademarks and signs. [50] In case there is an audio similarity in two trademarks, there is no need for the existence of visual or conceptual similarity in order to occur likelihood of confusion. [51] For example, there is phonetic similarity between “By”, “Buy” and “Bay”.[52]
Since average consumers pay more attention to the beginning of the words, similarity in the first syllable and first sound increases likelihood of confusion and it comes to an important point in the examination of phonetic similarity according to doctrine and Court of Cassation.[53] For example, in the decision of the Court of Cassation, the Supreme Court awarded that “FİT” and “FİTKÜVİ” trademarks are similiar due to the similarity in the the beginning of the words.[54] Also, pursuant to doctrine and some of the Court of Cassation decisions, trademarks which involve word and shape, component of the word has more importance.[55] As a result, the phonetic similarity is an important component while determining the likelihood of confusion.
c)Conceptual Similarity
In conceptual similarity, conceptual effects of two(2) trademarks over targeted average consumer shall be taken into consideration.[56] Even if, both of the trademarks are different from each other as phonetic and similar, in case conceptual effects of the trademarks create confusion, the likelihood of confusion occurs. [57] Decision of “MORİNEK” could be given as an example of conceptual similarity; in the aforementioned decision, the Court of Cassation awarded that although there is no visual and phonetic similarity between “MORİNEK” and “MİLKA”, there is a conceptual similarity.[58] In another decision, the Court of Cassation awarded that word of “CROCODILE” is similar to the shape of crocodile which belongs to “LACOSTE” due to conceptual similarity.[59] As a result, the most important factor in conceptual similarity is to examine the conceptual effects of two(2) trademarks over targeted average consumer.
3-Similarity in Goods and Services
In order to cite that there is a trademark infringement according to article 7/2-b of IPC, besides the similarity or sameness of the sign, there also has to be similarity or sameness in goods and services. [60] As the likelihood of confusion could be for entire goods and services, it could be also for partial goods and services.[61] For example, in one of the decisions of the Court of the Cassation, while the Supreme Court has not found similarity in the 6th and 7th class, it has found similarity in the 35th class.[62]
Article 11/4 of IPC states that; “Goods or services shall not be presumed as being similar on the ground that they are in the same class and goods or services shall not be regarded as being dissimilar on the ground that they are in different classes”. Therefore, based on the aforementioned provision, it could be expressed that the court does not bound with the classification system.
4-Evalution of Confusion According to Average Consumer
Firstly it is vital to determine who the average consumer is pursuant to article 7/2-b of IPC. Article 7/2-b of IPC states that “Use of any sign identical with or similar to a registered trademark and covering identical or similar goods or services with the registered trademark, and is therefore liable to create a likelihood of confusion on the part of the public; including the likelihood of association between the sign and the trademark.”. Within the scope of Article 7/2-b, the word “public” means potential consumers related to goods and services.[63] The Court of Cassation rules that the word “public” taking place at the article 7/2-b of IPC expresses that evaluation has to be done by taking into account the average consumer.[64] However, determining the average consumer is also an important issue for the likelihood of confusion; because, the existence of the likelihood of confusion forms in accordance with average consumer which goods and services appeal to.[65] For example, in one of the decisions of the Court of Cassation, the Supreme Court awarded that “ÜLKER HOBİ” and “ÜLFET LOBİ” are similar since the average consumer of the goods and services are children and the attention level of the children is less.[66] In the another decision, the Court of Cassation awarded that since the avarage consumer for the class of 38th is more careful and selective the likelihood of confusion will not occur.[67] Therefore, as a result, it could be expressed that the average consumer to which goods and services appeal, is an important factor while examining the likelihood of confusion.
C-Effect of Weak and Strong Trademarks
In the evaluation of the likelihood of confusion, the distinction between strong and weak trademarks is a significant issue. Although, there is no legal basis of weak and strong trademark, it is accepted in both the Court of the Cassation decisions and doctrine.[68] In case a trademark has “low distinctiveness” for the registered goods and services, it could be called a weak trademark; the concept of “weak trademark” is accepted in EUIPO, CJEU, and Court of Cassation decisions, and in this context weakness of trademark decreases the level of protection of trademark. [69] However, In case a trademark has “high distinctiveness” for the registered goods and services, it could be called a strong trademark; strong trademarks provides more comprehensive protection when they are compared with weak trademarks. [70] Therefore, it could be mentioned that the protection level of the trademark is associated with the level of distinctiveness.[71] However in the “DIAMOND” decision, the Supreme Court Assembly of Civil Chambers awarded that as long as the trademark is registered, it has to be protected, so, contentions of the weak and descriptive trademark could only be assumed in invalidation case.[72] The aforementioned decision is criticized in the doctrine based on the argument that the court has not made sufficient holistic examination and the verdict is risky for commercial life and law.[73] There are also diiferent decisions of the Court of Cassation related to weak and strong trademarks; the Supreme Court awarded that since “ZERO” is not distinctive for related goods and services, there is no likelihood of confusion between “ULUDAĞ ZERO” and “COCA COLA ZERO”.[74]
D-Effect of Well Known Trademarks to the Likelihood of Confusion
As it is explained in section C highly distinctive trademarks have more comprehensive protection according to other trademarks. [75] Because of that reason, in the course of examination of the likelihood of confusion, it is important as to whether the previous trademark is well-known, in this context, as the well-known of the trademark increases, the likelihood of confusion also increases.[76] In the decision of “RED BULL” and “PIZZA BULLS”, the Court of Cassation awarded that being a well-known trademark increases the likelihood of confusion.[77] In another decision, the Court of Cassation also emphasized that being a well-known trademark has a significant effect on the likelihood of confusion. [78] Hence, both of doctrine and the Court of Cassation accepts that being a well-known trademark increases the likelihood of confusion.[79]
V-OTHER CONSIDERATIONS
As it is known that article 29/1-a of IPC states that using the trademark as set out in Article 7 without the consent of the trademark proprietor constitutes trademark infringement.[80] Therefore, it could be mentioned that usage of the trademark in accordance with article 7/2-b of IPC is trademark infringement. The trademark owner whose right is infringed has a chance to claim the sanctions which are determined in article 149 of IPC.[81] In this context, anyone who has a legal interest could file a case in order to claim to determine the existence of an infringement, prevent the possible infringement, stop the infringing actions, remedy the infringement and compensate material and moral damages.[82] However, in those cases, the defendant has a chance to claim from the plaintiff to prove its usage in related goods and services within five(5) years before the date of proceeding with the case in accordance with article 29/2 of IPC.[83] Lastly, article 155 of IPC states that; “Trademark, patent or design right owner shall not put forward his industrial property right as a defense in an infringement proceeding that has been instituted by right owners who have an earlier priority or application date than his own right.” Therefore, pursuant to article 155 of IPC even if the subsequent trademark is registered in the Turkish Patent and Trademark Institute, the owner of the aforementioned trademark could not contend its trademark as a defense argument in the course of judgement.[84]
CONCLUSION
As it was explained above that as of the development of technology and commercial life, trademark infringement became a significant issue for both lawyers and merchants. Article 7/2-b of IPC which is related to the likelihood of confusion is one of the most seen infringements in today’s world. Therefore, in this article 7/2-b of IPC has been examined. In order to occur likelihood of confusion related to article 7/2-b of IPC, there has to be identity between subsequent trademark and previosuly registered trademark or there has to be similarity which creates likelihood of confusion as visual, phonetic or conceptual on average consumer. In addition goods and services also have to be similar. Examination of the likelihood of confusion is done by using global impact and distinctive components of the trademark. In the examination it will be also considered as to whether previous registered trademark is well known or weak or strong. When there is likelihood of cofusion related to article 7/2-b of IPC, the one whose trademark right is infringed has a right to claim determine the existence of an infringement, prevent the possible infringement, stop the infringing actions, remedy the infringement and compensate material and moral damages. In these cases, the defendant ha a chance to claim from the plaintiff to prove its usage in related goods and services within five(5) years before the date of proceeding.
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* İstanbul Medeniyet University, Institute of Graduate Studies, Private Law Student.
[1] Industrial Property Code, No: 6769, Acceptance Date: 22.12.2016, OG: 10.1.2017/29944
[2] Serkan Dalkıran, “The Likelihood of Confusion on Trademark Law in the Light of Court Decision”(2019), available at YOKSIS, < https://tez.yok.gov.tr/UlusalTezMerkezi/tezSorguSonucYeni.jsp >, 5. accessed 18.12.2021.
[3] Industrial Property Code, No: 6769, Acceptance Date: 22.12.2016, OG: 10.1.2017/29944
[4] Dalkıran(n. 2)51.
[5] Ibid.
[6] Uğur Çolak, Türk Marka Hukuku 6769 Sayılı Sınai Mülkiyet Kanunu’na Göre Hazırlanmış(4th edn. On İki Levha Yayıncılık 2018)11; Adem Aslan, Türk ve AB Marka Hukukunda Fikri Mülkiyet Haklarının Tükenmesi(Beta 2004)12; Dalkıran(n. 2)52.
[7] Industrial Property Code, No: 6769, Acceptance Date: 22.12.2016, OG: 10.1.2017/29944.
[8] Dalkıran(n. 2)55.
[9] Ahmet Mutlu, “Marka Hakkı ve Marka Tescilinden Doğan Hakların Kapsamında İstisna”(2009), available at YOKSIS, < https://tez.yok.gov.tr/UlusalTezMerkezi/tezSorguSonucYeni.jsp >, 64. accessed 19.12.2021
[10] Ahmet Selçuk, Marka Hukukunda Kullanıma Dayalı Öncelik Hakkı (2020), available at YOKSIS, < https://tez.yok.gov.tr/UlusalTezMerkezi/tezSorguSonucYeni.jsp >, 24-36. accessed 19.12.2021
[11] Fethi Merdivan, “6769 sayılı Sınai Mülkiyet Kanunu – Sistem, İlkeler ve 556 Sayılı KHK Dönemindeki Yargıtay Kararlarının Yeni Dönemde Uygulanabilirliği (Marka)”(2020), available at Ankara Barosu Dergisi, < http://www.ankarabarosu.org.tr/siteler/ankarabarosu/frmmakale/2020-1/2.pdf >, 22, accessed 22.12.2021
[12] Dalkıran(n. 2)57-58.
[13] Çolak(n. 6)934.
[14] Ibid.
[15] Derin Yılmaz, Marka Hukukunda İltı̇bas Kavramı ve Uygulaması(2016) , available at YOKSIS, < https://tez.yok.gov.tr/UlusalTezMerkezi/tezSorguSonucYeni.jsp >, 29. accessed 22.12.2021
[16] Industrial Property Code, No: 6769, Acceptance Date: 22.12.2016, OG: 10.1.2017/29944.
[17] Irene Calboli and Jane C. Ginsburg, The Cambridge Handbook of International and Comparative Trademark Law(1st Edn. Cambridge University Press 2020)33-34.
[18] Dalkıran(n. 2)71.
[19] CJEU, Canon Kabushiki Kaisha v Metro-Goldwyn-Mayer Inc, C-39/97, 29.09.1998, prg.29.
[20] Hazal Mintaş, “Marka Hukukunda Karıştırılma Tehlikesi”(2017) , available at YOKSIS, < https://tez.yok.gov.tr/UlusalTezMerkezi/tezSorguSonucYeni.jsp >, 55 accessed 23.12.2021.
[21] Mintaş(n.20)55; Çolak(n.6) 200.
[22] Çolak(n.6) 202.
[23] ibid.
[24] 11th C.C. of Court of Cassation, Case No: 2019/3671 and Decision No: 2020/1913, 24.2.2020.
[25] Dalkıran(n. 2)71.
[26] Hanife Dirikkan, Tanınmış Markanın Korunması(1st edn. Seçkin Yayıncılık 2003)165; ibid.
[27] Mintaş(n.20)57.
[28] Çolak(n.6) 291.
[29] Dalkıran(n. 2)77.
[30] Canan Küçükali, Marka Hukukunda Karıştırılma Tehlikesi(1st Edn. Seçkin Yayıncılık 2009)67; Dirkkan(n.26)166.
[31] Küçükali(n.30)67; Mintaş(n.20)58.
[32] Dalkıran(n. 2)79.
[33] Çolak(n.6) 225.
[34] Ünal Tekinalp, Fikri Mülkiyet Hukuku (Vedat Kitapçılık 2012)441.
[35] Sabih Arkan, Marka Hukuku C. I (Ankara Hukuk Fakültesi Yayınları 1997)76.
[36] Hamdi Yasaman, Sınai Mülkiyet Hukuku Şerhi (Seçkin Yayıncılık 2021)925-926.
[37] 11th C.C. of Court of Cassation, Case No: 2009/14409 and Decision No: 2011/7481, 20.6.2011.
[38] 11th C.C. of Court of Cassation, Case No: 2007/3978 and Decision No: 2008/5689, 28.4.2008.
[39] Dalkıran(n. 2)85.
[40] Çolak(n.6) 226.
[41] Dalkıran(n. 2)86.
[42] Yasaman(n.36)929.
[43] Dalkıran(n. 2)88; Dilek İmirlioğlu, 6769 Sayılı Sınai Mülkiyet Kanunu’na göre Marka Hukukunda Ayırt Edicilik ve Markanın Ayırt Ediciliğinin Zedelenmesi(1st Edn Adalet Yayınevi 2017)170.
[44] Ibid; Çolak(n.6) 226.
[45] Ibid.
[46] İmirlioğlu (n.43)170; Çolak(n.6) 226.
[47] 11th C.C. of Court of Cassation, Case No: 2018/275 and Decision No: 2019/2246, 25.3.2019.
[48] 11th C.C. of Court of Cassation, Case No: 2020/427 and Decision No: 2020/4841, 9.11.2020.
[49] 11th C.C. of Court of Cassation, Case No: 2019/828 and Decision No: 2019/7600, 27.11.2019.
[50] Çolak(n.6) 229; İmirlioğlu (n.43)175.
[51] Dalkıran(n. 2)90.
[52] İmirlioğlu(n.43)175.
[53] Çolak(n.6) 230; Dalkıran(n. 2)91.
[54] 11th C.C. of Court of Cassation, Case No: 2019/3833 and Decision No: 2020/2305, 3.3.2020.
[55] Cahit Suluk, Rauf Karasu and Temel Nal, Fikri Mülkiyet Hukuku(4th Edn. Seçkin Yayıncılık 2020); 11th C.C. of Court of Cassation, Case No: 2012/8150 and Decision No: 2013/8076, 24.4.2013.
[56] Dalkıran(n. 2)92-93.
[57] Çolak(n.6) 233.
[58] 11th C.C. of Court of Cassation, Case No: 2012/14887 and Decision No: 2013/13434, 27.6.2013.
[59] 11th C.C. of Court of Cassation, Case No: 2006/11719 and Decision No: 2007/372, 18.01.2007.
[60] Dalkıran(n. 2)94-95.
[61] Çolak(n.6) 236.
[62] 11th C.C. of Court of Cassation, Case No: 2012/10021 and Decision No: 2013/13135, 24.06.2013.
[63] Çolak(n.6) 238.
[64] 11th C.C. of Court of Cassation, Case No: 2006/13229 and Decision No: 2007/884, 26.01.2007.
[65] Dalkıran(n. 2)102; İmirlioğlu(n. 43)168.
[66] 11th C.C. of Court of Cassation, Case No: 1999/5356 and Decision No: 1999/9805, 30.11.1999.
[67] 11th C.C. of Court of Cassation, Case No: 2015/5577 and Decision No: 2015/13027, 7.12.2015.
[68] Dalkıran(n. 2)116.
[69] For the detailed information of weak trademark see. Annte Kur and Martin Senftleben, European Trademark Law( Oxford 2017) 229.
[70] Dalkıran(n. 2)117; Çolak(n.6) 247.
[71] Uğur Aytekin, Güldeniz Doğan Alkan and Zeynep Çağla Özcebe, “Yargıtay Hukuk Genel Kurulu’nun 02.10.2013 Tarihli 2013/11-52 E. ve 2013/1416 K. Sayılı Kararı(“Diamond Kararı”) ve Tanımlayıcı Markaların Karştırılma İhtimali Değerlendirmesi”(2015), 2015/2 Ankara Barosu Dergisi, < http://www.ankarabarosu.org.tr/siteler/ankarabarosu/frmmakale/2015-2/01.pdf >, 18, accessed 28.12.2021.
[72] The Supreme Court Assembly of Civil Chambers, Case No: 2013/11-52 and Decision No: 2013/1416, 2.10.2013.
[73] Aytekin, Alkan, Özcebe(n.71)19.
[74] 11th C.C. of Court of Cassation, Case No: 2012/2652 and Decision No: 2013/15309, 17.9.2013.
[75] Dalkıran(n. 2)117.
[76] Çolak(n.6) 253; Dirkkan(n.26)168.
[77] 11th C.C. of Court of Cassation, Case No: 2012/16106 and Decision No: 2013/13965, 01.7.2013.
[78] 11th C.C. of Court of Cassation, Case No: 2015/15619 and Decision No: 2017/3026, 24.5.2017.
[79] Çolak(n.6) 253; Dirkkan(n.26)168.
[80] Industrial Property Code, No: 6769, Acceptance Date: 22.12.2016, OG: 10.1.2017/29944.
[81] Industrial Property Code, No: 6769, Acceptance Date: 22.12.2016, OG: 10.1.2017/29944.
[82] Mintaş(n.20)106.
[83] Çolak(n.6) 685.
[84] Ibid 671.