Edition 53: 11 October 2017
Editorial Team:
Orçun Çetinkaya, LL.M., Ezgi Baklacı, LL.M., and Pelin Oğuzer, LL.M.
Turkey Adjusts Criminal and Civil Appeal Periods to Fifteen Days

Turkey has adjusted criminal and civil appeal periods to 15 days from the date a decision is notified to the parties, applying to decisions issued from 5 August 2017 onward. The changes extend the criminal appeal period (previously seven days), but tighten the appeal period offered in the civil context (previously one month).

The changes were introduced by Law number 7035 published in Official Gazette number 7035 on 5 August 2017 (“Law”).

The Law amended:

– Article 271 of the Code of Criminal Procedure number 5271, and

– Article 361 of the Code of Civil Procedure number 6100.

Please see the link for full text of the Law (only available in Turkish).

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European Court of Human Rights: Monitoring an Employee’s Office Communication Account Breached His Right to Private Life

The European Court of Human Rights (“ECHR”) recently held that an employer’s monitoring of an employee’s office communication account violated his right to private life, granted under Article 8 of the European Convention on Human Rights (“Convention”).

The employee was dismissed in 2007 on the basis he had been using an office communication account for personal purposes. The employee filed a complaint before Romanian courts, claiming the dismissal violated his right to private life. The domestic courts ruled in favour of the employer, so the employee filed an application to the ECHR, contending that the court had not struck a fair balance between the interests at stake.

The ECHR recently decided that the employee’s communication contents fell within the scope of “private life” and “communication”, as referred to under the Convention. The ECHR concluded that the national authorities had not adequately protected the employee’s right to respect for his private life and correspondence. They had consequently failed to strike a fair balance between the interests at stake.

According to the ECHR’s decision, the domestic courts should have considered a number of factors when rendering their decision, including:

– Whether the employee has been clearly informed about the possibility of monitoring.

– The nature or extent of the monitoring.

– Whether the employer had legitimate reasons to justify monitoring and accessing all contents.

– Whether less intrusive methods would have been sufficient for the purposes.

– The consequences of the monitoring for the employee.

Please see this link for the full text of the ECHR’s decision in Bărbulescu v. Romania (61496/08).

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Turkish Court Considers Rights Arising from a Trademark Series

A Turkish court recently held that a trademark application which simply drops the figurative element from an existing trademark (which combined both word and figurative elements) does not fall within the scope of the earlier trademark’s rights. Therefore, the court held that unless both elements were used, the later trademark application does not violate the earlier trademark’s rights. It clarified that a trademark cannot be considered part of a trademark series if it is confusingly similar to someone else’s trademark.

In the case at hand, both parties owned trademarks with similar word elements, although they operate in different sectors. Company A’s earlier trademark registration contained figurative and word elements. Company B’s later trademark application involved a word element, excluding the figurative element.

Company A objected to the later trademark application, but this objection was rejected by the Re-evaluation and Examination Department of the Turkish Trademark and Patent Office.

Company A initiated a lawsuit seeking to overrule the rejection and expunge the disputed trademark application from the register, on the basis that it risked diluting the earlier trademark.

Company B argued that the visual aspect in the earlier registration was not a significant trademark element and the fundamental element of their trademark was actually the word, which is the similar aspect between the two marks.

The Court of First Instance ruled in Company B’s favor, holding the trademark’s visual element to be secondary.

The Plaintiff appealed the Court of First Instance’s decision. The Court of Cassation overruled the lower court’s decision, saying the right acquired by Company A’s earlier trademark includes the registration’s word and figurative elements. It held that any imperfect recollection left in memory of the average customer in this context is due to the trademark’s figurative element. Therefore, as long as the same imperfect recollection is left, the application can be registered. In other words, the court said that to accept a serial trademark defence, the application should not be confusingly similar to someone else’s trademark.

The case was sent back to the Court of First Instance for a re-examination. However, the Court of First Instance insisted that its former decision should stand, in favour of Company B. Therefore, the matter was escalated again, this time to the highest body within the Court of Cassation, the Assembly of Civil Chambers (“Assembly”).

The Assembly agreed with the Court of Cassation’s decision in favour of Company A. It held that the rights which the earlier trademark had acquired applied to the combination of word and figurative elements. Therefore, unless both elements are used, Company B’s later trademark application does not violate the earlier trademark’s rights.

(Assembly of Civil Chambers, decision dated 14.06.2017, No. E. 2017/1729 K.2017/1186 – link)

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Turkish Medicine and Medical Device Regulator Seizes 73 Types of Counterfeit and Smuggled Goods in 2017

The Turkish Medicine and Medical Device Agency, part of the Ministry of Health (“Ministry”), recently announced that it had seized 73 types of counterfeit and smuggled pharmaceuticals during inspections and raids so far in 2017. The counterfeit or smuggled products include well-known trademarks from other sectors, such as Ferrari, Jaguar, Lacoste, Pink Panther, and Porsche. They also include words from well-known pharmaceutical trademarks, such as “Viaga” instead of “Viagra”.

Given the well-known status of some of the trademarks involved, the counterfeiters and smugglers obviously seek to take unfair advantage of the trademarks’ well-known status in other sectors. Such acts damage the basis trademarks’ reputation and are also detrimental to the marks’ distinctiveness. These acts constitute infringement under trademark law.

The Ministry’s approval is required to launch pharmaceuticals to the market in Turkey (Article 3, Pharmaceutical and Medical Preparations Law number 1262; Article 5, Regulation on Licensing of Human Medicinal Products). It is a criminal act for unauthorized persons to sell medical pharmaceuticals and preparations, punishable by imprisonment for between two months and one year (Article 43, Law on Pharmacists and Pharmacies number 6197; Article 193, Turkish Criminal Law). Thus, unlicensed sale of pharmaceuticals is a criminal act in Turkey, also raising serious dangers to public health.

Please see the announcement and attached list of counterfeit and smuggled pharmaceuticals at this link.

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Turkey Allows Nightshift Overtime in Tourism, Private Security and Health Service Sectors

Turkey has removed the 7.5 working hours maximum limit for night shifts for employee and sub-employees in the tourism, private security and health service sectors, provided each employee gives their written consent. The change allows employees in these sectors to work in two shifts, rather than the prior requirement that three shifts exist.

Specific legislation addressing female employees working night shifts has also been amended, allowing female employees to work night shifts exceeding 7.5 hours, if written consent is given.

Please see these links for the full texts of the amendment regulations published in Official Gazette number 30159 on 19 August 2017 (only available in Turkish):

Amendment Regulation of the Regulation on Special Procedures and Principles regarding Shift Work

Amendment Regulation of the Regulation on the Night Shift Conditions for Female Employees

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Turkish Constitutional Court: Constitutional Right to Legal Remedies and Access to the Courts Means Expropriation Compensation Lawsuit Should be Heard

Turkey’s Constitutional Court recently considered a claim arising from a dismissed lawsuit, seeking compensation for expropriated land. The lower court had dismissed the compensation case without making any substantive examination of the claim. The lower court dismissed the case on the basis that the earlier expropriation proceedings had already been completed and at the time this occurred, legislation did not require the property owner to be notified. The Constitutional Court held that this ruling violated the claimant’s rights to legal remedies and access to the courts (Article 36 of the Constitution).

The Constitutional Court emphasized that the right to access the courts means “to be able to bring a dispute or a request within the scope of a dispute before the court and to seek to reach an effective decision”. The court held that this falls within the scope of Article 36, which addresses the constitutional right to legal remedies.

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

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Turkish Constitutional Court: Holding a Company’s Legal Representative Liable for Unpaid Public Debts does not Violate Property Rights

Turkey’s Constitutional Court recently held that legal representatives are jointly responsible with the respective legal entity for public debts which were payable during their time of influence. The court held that this does not upset the balance between public benefit and an individual’s constitutional right to property.

The applicant (“Applicant”) was a board member for a company (“Company“) between 1996 and 1999. The Company held a 10% stake in Yurtbank A.Ş. (“Yurtbank“), which was transferred to the Savings Deposits Insurance Fund (“Fund“) in late 1999. The Applicant was also a board member of Yurtbank from 1998 to 1999. In May 2008, the Fund initiated execution proceedings against the Company, seeking to recover Yurtbank’s uncollected public debts (based on Repetitive Article 35 of the Law on Collection Procedure of Public Receivables No. 6183).

The Applicant argued that he is not liable because the debt became a public receivable in August 2001, after he was a board member. He also argued that Article 35(5) did not apply to him because the Constitutional Court had struck out a key empowering part of the provision (Article 35(5)) for pending cases.

The Constitutional Court noted that repetitive Article 35(5) had been annulled to remove the responsibility of legal representatives for debts which were not payable when they were a representative.

In these circumstances, the court held the Applicant is responsible for the debt because:

– The Applicant’s liability was not affected by the enforcing article being annulled, nor the sub-article later added to the Law.

– The unpaid debt had been payable during his term as a board member.

– The debt arose during a period when the Applicant had the chance to intervene.

– Holding the Applicant responsible for the debt is not an excessive and disproportionate burden on the Applicant. It does not upset the balance between public benefit and an individual’s right to property.

Therefore, the court held that legal representatives are jointly responsible with the respective legal entity from the date when the public debt was payable and this responsibility does not upset the balance between public benefit and an individual’s right to property.

Please see this link for the full text of the Constitutional Court’s Decision, published in Official Gazette number 30142 on 2 August 2017, regarding application B. No. 2014/15237 (only available in Turkish).

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