Industrial Property Law No. 6769 (IPC) Article 9 regulates that the registered trademark can be canceled if it is not used seriously for 5 years. This institution is an important tool against those who make "brand reserves".
Legal Framework
- SMK article 9: Obligation to use trademark.
- SMK article 26: Reasons for trademark cancellation (non-use, genericization, misleading use).
- SMK article 27: Effect of annulment decision.
- SMK article 41: Turkpatent or court.
"Serious Use" Criteria
- Actual commercial use in the market.
- Symbolic/representational use is inadequate.
- Volume may be modest; Continuity is sought.
- Must be documented with advertising, packaging and invoice.
- Online sales also count as usage.
5 Year Period
- 5 years from registration or last serious use.
- Cancellation request can be made at the end of the period.
- In cases of annulment initiated within the period, subsequent use does not prevent annulment.
Those Who Can Request Cancellation
- A person who hinders/damages the trademark registration.
- Those who want to obtain trademark registration in the same class.
- Anyone interested (broad comment).
Burden of Proof
- Proof of use by the trademark owner.
- Documents: invoices, advertising, packaging samples, web archives.
- Witness testimony is helpful.
- Annulment decision if not proven.
"Force Majeure" Exception
- Natural disaster, war, epidemic.
- These periods are deducted from the 5-year calculation.
- Nevertheless, the "continuity" logic is preserved.
Supreme Court 11th HD — Established Approach
11. In trademark cancellation cases, HD seeks to prove "serious use" with concrete evidence, that only one or two invoices or symbolic use may be insufficient, and that the form of use is similar to the one in the trademark registration.
Türkpatent — Administrative Way
- After 2017 — Türkpatent has direct cancellation authority.
- Quick process (6-12 months).
- Appeal to administrative decision through court.
Effect of Cancellation Decision
- The trademark is deleted from the registry.
- Effective from the date of cancellation (not retroactive).
- A path is opened for third parties to register another trademark.
Practical Advice — Brand Owner
Practical Advice — Requesting Cancellation
Trademark cancellation cases are a strategic tool. Trademark and patent law lawyer recommended.