The questions below offer a general framework on opposing a trademark application, unauthorized use of content, and the scope of use in copyright and license agreements. In a specific case, time limits, documents and the regulations in force are assessed separately.
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Which rights may arise when content is used without permission?
If the content qualifies as a work, copyright may be relied on; if a distinctive sign or a design is involved, other intellectual and industrial property rights may be relied on.
In the unauthorized use of content such as photographs, text, video, music or software, rights ownership, the originality of the work, the scope of the permission to use and the form of the infringement are examined. Preservation of evidence, removal of the content, cessation of the interference and, if the conditions are met, claims for pecuniary or non-pecuniary damages may arise. Content made openly accessible on the internet is not deemed to have been released for free use. The source, the date and screen recordings should be preserved for the purposes of proof.
How is the scope of use determined in a copyright and license agreement?
It must be clearly specified which economic rights the license covers, for which forms of use and for how long.
Under the Law on Intellectual and Artistic Works, in a license or an assignment of economic rights, which of the rights, such as adaptation, reproduction, distribution, performance and communication to the public, have been granted is assessed separately. The contract should contain provisions on the media of use, the countries, the term, exclusivity, sub-licensing to third parties and the fee. Matters such as the status of moral rights and the attribution of the author’s name are also examined separately. An ambiguous general-permission clause may later cause serious disputes over scope.
Can trademark rights be protected without trademark registration?
Registration provides important protection; depending on the conditions, other protection avenues may also exist for unregistered signs.
The unfair competition provisions of the Industrial Property Law and the Turkish Commercial Code, the date of use of the sign, its recognition and the likelihood of confusion are examined. Unregistered use does not, in every case, give rise to the same protection as a registered trademark.
Does citing the source of a photograph used on the internet prevent copyright infringement?
No; citing the source does not, by itself, replace permission to use.
Authorship, license terms, statutory exceptions, the purpose of use and alterations made to the image are assessed. Being openly accessible on the internet does not mean a general permission for commercial use.
What route is followed if a dispute arises between a domain name and a trademark?
Depending on the registration, the purpose of use and the extension of the domain name, an administrative or judicial application may be considered.
The trademark registry, the domain name registration date, bad-faith use, renown and domain name dispute policies should be examined. It cannot be assumed that registering a domain name automatically confers trademark rights.
Is registration of a work compulsory for copyright to arise?
As a rule, no. Rights in a work under the Law on Intellectual and Artistic Works (FSEK) arise when the work is created in compliance with the statutory conditions; registration is not a general condition for the arising of the right.
With respect to Law No. 5846 on Intellectual and Artistic Works, determining whether a work qualifies as a work and who its author is is a matter separate from registration. Certain recording-registration or banderole (bandrol) practices may matter for proof, for a sector or for an administrative process; however, the arising of copyright is not generally dependent on registration. In a dispute, whether the work bears the personal character of its author, the date of creation, the source files and the documents of assignment of rights/licences should be examined.