The Regulation on Electronic Commerce Intermediary Service Providers and Electronic Commerce Service Providers (“Regulation”) was published in the Official Gazette dated 29.12.2022 and numbered 32058. The complete Regulation can be accessed here only in Turkish.
The Regulation introduces some new regulations in terms of relations between electronic commerce intermediary service providers (“ECISP”) (marketplaces such as Trendyol, Hepsiburada, n11, Amazon, etc.), electronic commerce service providers (“ECSP”) (stores in marketplaces) and intellectual or industrial property right holders (“Right Holder”).
“Infringement of Intellectual and Industrial Property Rights” is regulated in the fourth section of the Regulation but there was no distinction made in terms of trademark, patent, design, or copyright. Therefore, we believe that the Regulation is applicable in terms of all intellectual property rights until a new regulation is introduced.
While the Regulation introduces certain obligations in terms of ECISP and ECSPs, it also introduces regulations for the benefit of the Right Holders in case of infringement of intellectual and industrial rights and facilitates the protection of intellectual and industrial rights in e-commerce marketplaces.
The new regulations and obligations introduced by this Regulation in terms of intellectual property rights are as follows:
Right of Complaint of the Right Holder
Article 12 of the Regulation regulates the right of complaint of the Right Holder. Accordingly, the information and documents the Right Holder should submit in the complaint application to ECISP via the internal communication system, notary public or registered electronic mail (“REM”) in case of infringement of the intellectual or industrial property right are regulated. Accordingly, the applicant must present the following information and documents:
Registration certificate showing the right ownership issued by the Turkish Patent and Trademark Office or a banderole form issued by the Ministry of Culture and Tourism or an activity certificate for professional associations within the scope of the Intellectual and Artistic Works Code numbered 5846,
If the complainant is a real person, his/her name, surname, ID number, address information, e-mail address and REM address, if any,
If the complainant is a legal entity, its title, address information, e-mail address, REM address,
Justifications and proof that the complained product infringes the intellectual and industrial property rights,
The internet address that indicates the product subject to the complaint,
A statement attesting that the applicant is responsible for damages that may arise in the event that the information and documents submitted within the scope of the complaint application are untrue.
The Right Holder may submit a complaint to ECISP along with the details and supporting documentation outlined in the Regulation and request that the product subject to the complaint be removed from publication. Within 48 hours of receiving the complaint application, ECISP is required to remove the product from publication and notify the ECSP and the Right Holder issuing the complaint.
Opposition Against the Right Holder’s Complaint
The ECSP whose product has been withdrawn from publication may file an opposition to the ECISP against the complaint application through the internal communication system, notary public or REM. Article 13 of the Regulation lists the information and documents that must be submitted for the opposition.
According to this article, ECSP must submit its opposition to ECISP through its internal communication system, notary public or REM, including the following information and documents:
The name, surname or title of the ECSP,
Grounds for the opposition, documents, and evidence showing that the respective removed product does not violate the complainant’s intellectual and industrial property rights,
Invoices or documents replacing invoices suitable to prove that the product is original, contracts, other documents and evidence showing the owner of the intellectual and industrial property right, starting with the product itself, or the persons who placed the product on the market with the authorization given by the Right Holder,
The applicant’s statement have better policies that they are responsible for damages that may arise if the information and documents submitted within the scope of the opposition application are false.
According to Article 14 of the Regulation, if it is clear from the information and documents presented in Article 13 that ECSP is right in its opposition, ECISP is obliged to republish the content within 24 hours at the latest from the receipt of the opposition and notify the Right Holder and ECSP about the situation.
Restriction and Exemption of ECISP’s Own Trademark Product Sales
Regardless of the identity of the manufacturer, ECISP is prohibited from selling and acting as an intermediary in the sale of goods for which it has the right to use the trademark, or if it carries the trademark of itself, or the people with whom it has economic integrity. Additionally, it is regulated that if the respective goods are made available on other e-commerce platforms, the ECISP shall not provide access to the respective platforms or promote the same.
Restriction of Marketing and Promotion Activities in Online Search Engines for ECISP and ECSPs
It is regulated that without prior written or electronic permission of organizations that are not in economic integrity with ECISP and ECSP will not be permitted to engage in marketing and promotion activities in their search engines using keywords of the registered trademarks that are exclusively the main element of the domain names registered on the Electronic Trade Information System (“ETIS”). In the event of infringement of this provision, a complaint may be filed.
ECISP’s Obligation to Prepare Compliance Reports
ECISPs have become obliged to prepare a compliance report each year in order to detect infringements of the Industrial Property Code of Turkey numbered 6769 regarding the content offered by the ECSPs.
For further queries, please contact:
Dogukan Berk Aksoy, LL.M.
Attorney at Law | Trademark Attorney | Patent Attorney
T: +90 312 969 09 63
Evren Firat Goklu
Attorney at Law | Trademark Attorney