Edition 21: 2 May 2016
Editorial Team:
Dr. E. Seyfi Moroğlu, LL.M., Işık Özdoğan, LL.M. and Bora İkiler, LL.M.
Turkey Will Compare Tobacco Intellectual Property Rights Against Similar Uses in Other Industries

Turkey’s Tobacco and Alcohol Market Regulatory Board (“Board”) has introduced an associability check, comparing registered names, trademarks, emblems, or logos for tobacco companies, against companies in other sectors. The Board will gradually complete associability checks, evaluating certain criteria. The check has retrospective effect and will be made based primarily on the Turkish Patent Institute’s trademark database and Ministry of Customs and Trade’s trade registry database.

The Board’s decision number 10936 (“Amendment Decision”) was published in Official Gazette number 29689 on 19 April 2016, entering into effect on the same date. The Amendment Decision updates an earlier Board decision about tobacco-related intellectual property matters (Decision number 7055, dated 12 November 2012).

Significant changes under the Amendment Decision include:

– An associability check is introduced, comparing registered names, trademarks, emblems, or logos for tobacco companies, against companies in other sectors.

– The associability check will also include registrations from before 4 July 2012, when Article 3/15 of Law No: 4207 was amended.

– The Board will gradually complete associability checks, evaluating certain criteria listed in the Amendment Decision.

– The Board’s inspections will be primarily based on the Turkish Patent Institute’s trademark database and Ministry of Customs and Trade’s trade registry database.

– The Board will consider:

– (first stage) whether the two elements being compared have the same figure and design, or are clearly and directly identical.

– (if the subject passes the first stage) whether the users of the elements are legally or economically related.

– (if the subject passes both stages above) whether the elements remind viewers of a tobacco product or tobacco company, encourage use of a tobacco product, or have similar elements.

– Increased details are introduced for tobacco companies to choose a name, emblem, logo or trademark.

– During establishment, tobacco-related companies must now provide:

– A range of specified license and compliance documents, listed in the Amendment Decision.

– An undertaking to the Board confirming that they have meet all relevant legal conditions.

– Breaches of the undertaking or related licenses and documents will receive administrative penalties between 50,000 TRY and 250,000 TRY.

– The Board will grant non-compliant companies six months to meet the conditions of Law No. 4207 and the Amendment Decision. Administrative penalties will apply for non-compliance after that period.

Please see this link for the Amendment Decision (only available in Turkish).

Read More
Turkey Amends and Clarifies Collection of Public Receivables

Turkey has amended and clarified the requirements for collecting public receivables. Changes particularly apply to obtaining documents to show an overdue debt, calculating the limitation period, as well as deleting records. Further explanatory information is also provided for existing requirements.

The Ministry of Finance-Revenue Administration published the General Communiqué regarding Collection of public receivables in Official Gazette number 29686 on 16 April 2016.

Key changes introduced by the amendments include:

– A simplified process is introduced for debtors to obtain documents showing an overdue debt. The document can now be obtained from any tax office, rather than only from the debtor’s registered tax office.

– A five year limitation period applies for public receivables. The period will now be calculated starting from the first day of the calendar year after the date the debt matures. If the limitation period is interrupted, the period starts on the first day of calendar year after the interruption occurred.

– Extra explanatory information is provided about limitation periods for:

– Public receivables, where these are blocked by the debtor being abroad, executing fraudulent bankruptcy, or estate liquidation.

– Collecting punitive fines. The limitation period starts after finalization of the judgement which imposed the fine.

– Collecting public receivables from bankrupt debtors which have obtained a certificate of insolvency.

– Deleting records of public receivables now requires permission from a competent authority, which depends according to the type of receivable.

Please see this link text of the Amendment Communiqué (only available in Turkish).

Read More
Turkish Constitutional Court: 99 Year Easement Does Not Violate Property Rights

Turkey’s Constitutional Court recently ruled that a 99 year administrative easement does not breach property owners’ constitutional property rights. A lower court escalated the issue for consideration, arguing that easements should be limited to ten years, with expropriation preferred for long periods. However, the Constitutional Court found that Article 4 of Expropriation Law numbered 2942 did not breach the Turkish Constitution. Rather, the Constitutional Court held that the Constitution specifically empowers the State and public corporations to impose administrative easements where public interests require, provided this is done lawfully and compensation is paid in advance (Decision number 2015/2 E. and 2016/19 K. on 16 March 2016).

In these circumstances, an administrative easement had been granted over private property to the General Directorate for State Hydraulic Works for 99 years.

The Court of First Instance ruled that the easement violated the property owner’s constitutional property rights. The court sought to annul Article 4 of Expropriation Law numbered 2942 before the Constitutional Court on the basis that:

– The Expropriation Law numbered 2942 had been misused.

– A 99 year easement period is longer than an average person’s life.

– Long term easements remove property rights.

– Expropriation should be preferred over long term easements.

– Easements should be maximum ten years in length, with the owner and administration meeting to mutually evaluate new easement terms for following periods.

On considering the case, the Constitutional Court held that the circumstances did not violate property rights envisaged under Article 35 of the Constitution.

The Constitutional Court noted that:

– Article 35 of the Constitution imposes a negative obligation on the State to respect individuals’ property rights by avoiding any unlawful interference.

– In principle, individuals are entitled to use, benefit, dispose, transfer, consume and destroy their property. Any regulations preventing individuals from doing these things constitute an interference with their property rights.

– Article 35 of the Constitution envisages that property rights can be limited where this is done lawfully and in the public interests.

– Legislators have discretion to establish administrative easements, provided these are in line with public interests and proportionality principles.

– Article 46 of the Constitution enables the State and public corporations to expropriate privately owned real estate (wholly or partially) and impose administrative easements where public interests require, provided this is done in accordance with principles and procedures prescribed by law and compensation is paid in advance.

– The scope and implementation of each fundamental right and liberty should not be determined individually, but rather be construed in accordance with the Constitution as a whole.

Therefore, in light of Article 46 of the Constitution, the Constitutional Court held that Article 4/1 of the Expropriation Law numbered 2942 does not violate property rights granted under Article 35 of the Constitution.

Please see this link for the full text of the decision of the Constitutional Court (only available in Turkish).

Read More
Turkey Announces Arrangements and Grace Periods for Tax Obligations Which Fall on 1 July 2016 to 20 July 2016

Turkey has announced details of arrangements for tax obligations which fall during a fiscal holiday, running from 1 July 2016 to 20 July 2016. Tax statements due during this period must be submitted by 27 July 2016. The grace period for legal or executive periods which expire during the fiscal holiday has reduced from seven days to five days in 2016.

The Notification (No.2) Amending the General Notification on Application of Fiscal Holiday (No.1) was published in Official Gazette number 29680 on 10 April 2016, entering into effect on the same date.

Key arrangements for 2016 include:

– Tax statements due on or between 1 July 2016 and 20 July 2016 must be submitted by 27 July 2016. Payments must be made by 28 July 2016.

– If the legal or executive period lapse on or between 1 July 2016 and 20 July 2016, the period will be deemed to have lapsed at the close of business hours on 27 July 2016. This grace period after the fiscal holiday is reduced from seven days in previous years, to five days in 2016.

– The deadline for tax statements due on 25 July 2016 will not be extended. Payments for such statements continue to be due by 26 July 2016.

– No exemptions or grace periods exist for obligations related to:

– Private consumption tax.

– Banking and insurance transactions tax.

– Special communication tax.

– Tax on games of chance.

– Deadlines for tax statements and payments are not extended for forced sales by auction and auction by certain specified government agencies (part I/B-6.2.2., I/B-6.1 of the General Notification on Application). 

Please see this link for full text of the Amendment Regulation (only available in Turkish).

Read More