Language

+90 (212) 217 12 55 +90 (212) 217 12 54 info@kilinclaw.com.tr

Articles

Categories

Publications Archive

Phone
+90 (212) 217 12 55
June 10, 2020

Trademark Rights Infringements on the Internet

Media & Entertainment
Reading Time: 5 minutes

I. PREAMBLE

 

As the internet is getting used more widely nowadays, the trademark rights infringements is increasing through unfair gain in the virtual media obtained by persons who are not right holders with the conflict of some industrial property rights.

With the Industrial Property Law No. 6769 (”IPL“), it is clearly determined in which case the use of registered trademarks on the internet is deemed to be infringed. Accordingly, in our article, search engine advertising and unsolicited spam e-mails, which are the most common forms of trademark rights infringements on the internet, as well as trademark rights infringements in terms of online advertising and internet domain names, are discussed and legal remedies to be applied against these violations will be mentioned.

II. FORMS OF INFRINGEMENTS THROUGH ONLINE ADVERTISING

 

As per sub-paragraph d of paragraph 3 of article 7 of the IPL titled “The Scope and Exclusions of Rights Arising from Trademark Registration”  “the use of the same or similar sign in a domain name, router code, keyword or similar format to create commercial impact on the internet, provided that the person using the sign has no right or legitimate connection to the use of the sign.”the use of the sign in the commercial field may be prohibited.

 

Therefore, the use of the same or similar elements of the trademark and its distinctive marks in a way that creates a commercial effect on the internet without a legitimate connection is considered as an infringement of the trademark right. Search engine advertising, unsolicited spam e-mails and domain name violations are the most common forms of infringments we encounter today on the internet in order to create commercial impact.

 

a. Search Engine Advertising

 

Google, the world’s well-known search engine, uses a system called “AdWords”, which is designed as “Sponsored Links” and shows advertisers’ ads to users in connection with the concepts used in the search. Adwords is short for “advertising words” and refers to ads that entities make on internet search engines based on keywords. Keyword advertising is the main source of income for internet search engines. Market-leading Google calls its own advertising program as “Google Adwords”. Other internet search engines use similar systems.

Search engines provide advertising customers the opportunity to make ads that are sensitive to the concepts and words entered into search engines. Whether the ad appears on the internet user’s screen depends entirely on the words and concepts entered into the search engines. In order to be displayed as much as possible in the concepts and words that users enter into the search engine, entities register certain concepts as “keywords”.[1]

In summary, search engine advertising is the use of someone else’s brand or trade name as a keyword in search engine ads or as a meta tag on the website. In this case, as per article 58 of the Turkish Commercial Code No. 6102. it constitutes the unfair competition.[2] In other words, taking advantage of someone else’s trademark or trade title constitutes unfair competition and the trademark right infringement.

 

b. Spam E-Mails

 

Spam e-mails are a form of advertising in which unsolicited commercial messages are delivered by sending e-mails one after the other. It is a type of non-personal mail sent to multiple users to attract more attention and convince them, and most importantly, it is received against the user’s request. At this point, free e-mail addresses that can be obtained from many web sites on the internet can be sent messages aimed at the person’s personality that violate his/her honour and dignity.

 

In addition, the degree of violation can be increased by sending these messages to persons other than the one whose personal rights is violated. It will be possible for more than one person to read the message at a time by sending these messages to e-mail groups. In such cases, lawsuits can be filed by claiming that the person’s rights have been violated. In order to prove this, the person will need to not delete the sent e-mail message and store it on his/her computer, as well as to have been received it in writing. However, since the actual information is not required to create an e-mail account, and creating free e-mail account is possible on many websites, it may be difficult to reach the person who sent the e-mail. In such cases, it is useful to ask the internet service providers for the Internet Protocol (IP) number of the computer on which the e-mail is sent and other information that can be accessed about the user. [3]

 

Moreover, according to article 6 of the Law on the Regulation of Electronic Commerce No. 6563 (“E-Commerce Law”), it is stated that commercial electronic messages can only be sent with prior approval and that such approval shall be received in writing or using any electronic communication tools. However, if the recipient of the message provides contact information for the purpose of contacting him/her, it is stated that no further approval shall be sought for commercial electronic messages for modification, use and maintenance of the goods or services provided.

 

Under article 7 Of the E-Commerce Law, the legislator stipulated that the contents of the electronic message shall be in compliance with the approval given by the recipient. Therefore, recipients have the right to refuse to receive electronic messages without showing any reasons. The service provider is responsible for ensuring that the rejection notification transmitted by the recipient can be made easily and free of charge by means of electronic communication and providing the necessary information regarding the rejection notification in the messages it sends. Within 3 (three) business days after the rejection request is received, the service provider will stop sending electronic messages to the recipient.

 

c. Domain Name Infringements

 

Domain names, which are now considered an indispensable element of commercial life, need to be protected at least as much as trade names and brands in commercial life. Briefly, it is possible to define the domain name as the address used to access any website and review the information within that website.

Malicious persons commit infringements on the internet by creating domain names that cause confusion by taking advantage of the trademark owner’s commercial reputation and recognition.

 

III. LEGAL REMEDIES

 

In case of trademark right infringements, trademark owners have rights to seek for legal remedies within the scope of provisions under the legislations such as Turkish Commercial Code, Turkish Civil Code, Turkish Code of Obligations,the E-Commerce Law, the Industrial Property Law, the Law on Regulation of Online Publications and Combating Crimes Committed Through These Publications. Each real case and the relevant situation should be evaluated separately and determine which legal possibilities to be applied exclusively.

 

IV. CONCLUSION

 

As the internet is getting used more widely, the trademark rights infringements is increasing through unfair gain in the virtual media obtained by persons who are not right holders with the conflict of some industrial property rights. The most common trademark infringements on the internet today are search engine advertising, unsolicited spam e-mails and domain name infringements.

In case of trademark right infringements, trademark owners have rights to seek for legal remedies within the scope of provisions under the legislations such as Turkish Commercial Code, Turkish Civil Code, Turkish Code of Obligations,the E-Commerce Law, the Industrial Property Law, the Law on Regulation of Online Publications and Combating Crimes Committed Through These Publications.

 

Best Regards,
Kılınç Law & Consulting

 

[1] Law, Economics and Political Science Monthly Online Journal-Assoc.Dr. Tekin Memiş * – Assoc.Dr. Savaş Bozbel

[2] Article 58- If unfair competition is committed through all kinds of media, publication, communication and information technology enterprises and institutions that will become operational as a result of future technical developments, lawsuits written in sub-paragraphs (a), (b) and (c) of the first paragraph of Article 56 may only be filed against the owners of what is published in the press, the program, what was displayed on the screen, information technology tool or similar media; what was published as a voice or what was transmitted in whatsoever way along with persons who placed an advertisement.

[3] Journal of the Ankara Bar Association-Legal Responsibility arising from Personal Rights Intervention via E-Mail pg.8

 

BACK TO ARTICLES HOMEPAGE
@