Transit of counterfeit goods: a Turkish perspective

  • There is uncertainty as to whether goods in transit may fall within the offence of trademark infringement pursuant to therelevant legislation
  • In 2020 the Criminal General Assembly of the Supreme Court issued a signifi cant precedent in this respect
  • In light of this decision, it is expected that the courts will consider that actions in a recent case constitute a trademarkinfringement offence

Turkey is located in an exceptionally strategic location, on the trade routes between Europe, the Middle East and CIS countries.Millions of goods pass through the Turkish territory under the transit regime within the scope of the commercial activitiesbetween, or exports to, these countries. As a result, Turkey has inadvertently become a hub for the transit of counterfeitproducts, alongside original ones.

Legal framework

Currently, the legal position on the transit of counterfeit goods is controversial. Article 30 of the Intellectual Property Code,which regulates trademark infringement offences, stipulates as follows:

"Anyone who produces goods or offers services, offers for sale and sells, imports and exports, purchases, keeps, transports or stores for commercial purposes, while infringing trademark rights belonging to someone else by means ofquotation or confusion, shall be sentenced to imprisonment between one year and three years and a judicial fi ne of upto 20,000 days. [emphasis added]"

The concept of ‘transit' is not clearly defi ned in the above-mentioned provision, even though the acts of importing and exportingare included. Since this provision of the IP Code refers only to the acts of importing and exporting, there is uncertainty as towhether goods in transit may fall within the offence of trademark infringement. The Transportation Act also defi nes trademarkinfringement, although some courts interpret this defi nition as ‘transportation within Turkey' and not as ‘transit'.

Apart from the IP Code, ‘transit' is also defi ned and regulated by the Customs Regulations issued under Article 57 of theCustoms Code. Article 101 of the Customs Regulations provides that the scope of IP protection for the goods is "subjected to acustoms-approved process or use including goods which are changing vehicles in the customs zone of Turkey". Nevertheless,the Customs Regulations give power to the Customs Directorates to suspend shipments only for 10 working days. The rightsholders must obtain a permanent seizure order from the Criminal Court of Peace or a preliminary injunction decision from theCivil Courts within this legal period, otherwise the goods will be released.

Supreme Court precedent

The Criminal General Assembly of the Supreme Court has recently established a critical precedent, ruling that the transit tradeof counterfeit products shall not constitute an offence pursuant to the regulation in force before 2017, but will constitute anoffence under the Industrial Property Law, which came into force in 2017.

Below is a translation of the relevant part of the Criminal General Assembly's unanimous decision in Case 2017/67 E 2020/253K, issued on 2 June 2020:

"Having evaluated as a whole the relevant provisions of the Customs Law No 4458, the transit declaration and thedefences of the defendants, it should be accepted that the accused's action does not comply with Article 61/A of theabrogated Decree Law No 556,but remained within the scope of the optional actions listed in the fi rst paragraph ofArticle 30 of the Industrial Property Law No 6769, which was published in the Official Gazette on 10 January 2017under No 29944 and entered into force after the date of the crime. [emphasis added]"

Recent case

In a recent matter, a large amount of counterfeit products exported from a third country to another were temporarily suspendedby the Customs Directorate located at the Turkish-Georgian border, based on a suspicion of trademark infringement andfollowing an application in the brand owner's name. Both the local criminal court and the Civil IP Court ordered the permanentseizure of the products in June 2022. The legal proceedings in this matter remain pending.

Although there are contradictory opinions regarding the transportation of counterfeit goods under the transit regime throughTurkish Customs, it is expected that the courts will consider that this action constitutes a trademark infringement offence in lightof the decision of the Criminal General Assembly of the Supreme Court.