The Procedure Regarding Protection Of Intellectual And Industrial Property Rights At Customs Gate
Güncelleme tarihi: 22 Eyl 2017
Intellectual and industrial property in Turkey is highly protected under international and domestic legal regulations, one of which lies in customs legislations.
I. Legal Arrangements
There are certain legal arrangements in these legislations regarding property rights. In accordance with European Union legislation, lawmakers have made certain amendments regarding intellectual and industrial property rights in the Customs Law No. 4458, through Decree Law No. 564. Article 57 of the Customs Law, which has been adapted to the European Customs Code, and relevant articles in the Customs Regulation clarify the procedure by which these rights are protected at customs gates.
Pursuant to Article 57 of the Customs Law, "in reference to the rights that must be protected under the legislation on intellectual and industrial rights, the Customs offices shall detain or suspend the customs procedures of the goods infringing the authority of the right holder, upon the request of the right holder or his representative".
II. Procedures Before the Ministry
In order for suspension of the customs procedures or customs detention of the goods which might infringe on the authority of the right-holder, the right-holder or his representative must apply to the Ministry of Customs and Trade and submit the Appendix-13 which has been drafted by the Ministry. The right-holder should attach to the Appendix all documents and information substantiating the right-holder's claim that he is the real right-holder and the the goods infringe on his authority. With the rearrangement, as of April 1st, 2013, this application procedure can be performed electronically through the Ministry's website. The right-holder or his representative can visit the Ministry's website, click on an eprocessing section and then fill up Appendix-13 if he has an electronic signature.
III. Electronic Application
When the electronic application form is submitted to the Ministry the right-holder should attach and state; i) information regarding the products or the brand registered by the right-holder, ii) information about the right-holder or his representative, iii) the subject of the application, and iv) documents demonstrating differences between original and counterfeit products. The right-holder should add all evidences regarding his property to the form in order to prove his claims.
The form is examined and if the form is completed properly, the Ministry will accept the application. After this stage, goods that might infringe on the right-holder's authorization are detected at the customs gate and the customs office will inform the right-holder or his representative immediately. If the rightholder or his representative makes a request after this notification, the customs office will take the minutes and suspend the customs procedures or decide on the detention of the goods infringing the authority of the right-holder and provide samples from the goods to the right-holder for examination.
Following, as stipulated under Article 57/3 of the Customs Law, the customs office gives three business days to the right-holder for perishable goods and ten business days for other goods as of the notification of the decision to suspend or detain the goods in order for the right-holder to obtain an interim injunction decision from the Court.
In conclusion, the owner of the goods may file a counterclaim as he has suffered an economic loss while his goods are suspended at the customs gate. For this reason, all of this process should be handled delicately and if the rightholder considers that the goods do not infringe his property rights, he should immediately stop the process and not take further action.