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Industrial Design Protection Law in Turkey

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Tuba Zengin

on 26 July 2014

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Transcript of Industrial Design Protection Law in Turkey

Industrial Design Protection in Turkey
- Industrial Design Protection in Turkey
- A Turkish Case
- An International Case
Industrial Design has been protected by the Decree-Law No.554 since June 27. 1995 with Amendments from December 31,1997
A. Tuba Zengin
Nazlican Yoney
Berk Kocaman
Aim of this Decree-Law
A Turkish Case
PVC Pipe Clips
- www. eforpatent.com/en/design-in-turkey/
- http://www.businessinsider.com/apple-vs-samsung-everything-you-need-to-know-about-the-patent-trial-of-the-century-2012-7
- http://www.tpe.gov.tr/dosyalar/EN_khk/IndustrialDesign_DecreeLaw.pdf
According to Decree-Law No.554 Aim of the Industrial Design Protection Law is to
- Protect the designs confirming with the provisions of this decree-law
- facilitate the formation and protection of the industry and of the competitive environment
Stages of Industrial Design
1- Filing the application to the Turkish Patent Institute
2- Formal checks of the application by TPI examiners- just on the application
3- Publication in the Offical Trademark Bulletin
4- Replying Oppositions filed by the 3rd Parties (if any)
5- Registration and Forwarding the Certificate
6- Renewal for Periods of 5 Years
A Little History
- First came the Brand rights- goods from the first ages have some signs showing the craftsman who made it
- Design rights came after Industrial Revolution with textile industry
What happens next?
Everything You Need To Know About The (Patent) Trial Of The Century
Definitions- according to Article 3
- the entirety of the various features such as lines, colour, texture, shape, sound, elasticity, material, or other characteristics perceived by the human senses of the appearance of the whole or part of a product or its ornementation
- any industrial or handicraft item, parts of a complex system, sets, compositions of items, packaging, get-ups, graphic symbols and typographic typefaces, excluding the computer products and semiconductor products
- creator of the design to be protected

Types of Designs
- 2-dimensional vs. 3-dimensional
- esthetics vs. operational
- registered vs. non-registered
Accoroding to Decree, the only important distiction is registered vs.non-registered
Protection of Design
- According to Article 5, Decree protects only the registered designs, rst will be protected under Turkish Commercial Code/Turkish Trade Act and Law on Intellectual and Artistic Works
- According to Article 6 and 7, in order to be protected under the Decree, meaning to be registered, the design needs to be new/novel and have an individual character.
according to decree- if before the date of reference no identical design has been available to the public
Individual Character
according to decree- the overall impression it creates on the informed user is significantly different from the overall impression created on the same user by any other design

Designs That are NOT Protected by the Decree
According to Article 9 and Article 10 some designs cannot be protected under the Decree. Designs;
- contrary to public order and general morality principles
- resulting from a technical function which does not leave to the designer any freedom in the design characteristics and elements
- that must necessarily be produced in its exact form and dimensions in order to enable the product in which the design is incorporated to be mechanically assembled or connected with other products
Scope and Duration of Protection
International Resources for Industrial Design
- Paris Agreement
- Bern Agreement
- Lucarno Agreement
- TRIPS- The Agreement on Trade-related Aspects on Intellectual Property Rights
Special Cases- Who owns the Design?
According to Article 14 and Article 15 there are special cases of entitlement of the design rights:
- when designs are developed by employees in the execution of their duties, the design rights shall vest with their employer unless otherwise provided in the employment contract
- when designs are developed by teaching staff of universities who undertake scientific work, they would have the right of entitlement not the university administration
Apple Vs. Samsung:
Registering an industrial design with the Turkish Patent Institute (TPI) in bad faith.

The legal actions leading up to the Council of Appellate Circuits’ decision were as follows:
-For several years,
Party X
manufactured and sold PVC pipe clips used in conjunction with rainwater down-pipes.

* The PVC pipe clips are commonly used in the market.
Party Y
held an industrial design registration for the same PVC pipe clip with the Turkish Patent Institute (TPI)

Party Y
initiated a criminal action against
Party X.

Party X
was convicted of design infringement and the PVC pipe clips in its store were seized, along with related manufacturing machinery.

Party X’
s financial losses further increased when it could no longer fulfil its contractual obligations.

Criminal action
Criminal & Invalidation Action

Invalidation action
Party X
initiated an invalidation action to nullify
Party Y’
s industrial design registration.

Party X
claimed that
Party Y
’s design lacked novelty and distinctiveness.

Party X
claimed that
Party Y
had filed its application to register the design with the TPI
despite knowing that the same product was widely used in the market and existed in many sales catalogues.

The court invalidated
Party Y
’s registered industrial design on the grounds that it was “not novel and distinctive.”
Party X
later initiated a civil action claiming monetary and moral damages which it had incurred as a result of
Party Y
initiating the criminal action.

Party X
claimed that
Party Y
had initiated the criminal action despite knowing the design lacked novelty and distinctiveness and the registration had since been invalidated. Accordingly,
Party X
claimed that due to being convicted of design infringement in the criminal action, it had suffered both moral and monetary losses.
Party Y
argued that although the design registration was later invalidated, at the date when the criminal action and raids took place, it held a valid registration which allowed
Party Y
to enjoy the associated rights which arise from such a registration.

Party Y
argued that the right to petition was a constitutional right and even if these were later invalidated, the rights arising from a registered design should not give rise to liability to compensate for
Party X’s

The Council of Appellate Circuits
upheld a decision that
Party Y
must compensate for
Party X
’s damages. The court reasoned that
Party Y
had unfairly benefited from the weak points of the TPI’s design registration system under which the novelty and the distinctiveness of design applications are not examined.

A general rule exists under Turkish Design Decree Law
number 554
that invalidation of a design takes effect retrospectively.

The Design Decree Law
This means that if a design is cancelled, it will be removed from the registry as if it had never been in force.

Quick Recap

-An industrial design right is an intellectual property right that protects the visual design of objects that are not purely utilitarian. An industrial design can be a two or three dimensional pattern used to produce a product, industrial commodity or handicraft; same as

the Turkish system.
the United States
, a design patent is a form of legal protection granted to the ornamental design of a functional item and design patents are a type of industrial design right.
the Origin:
How it all begun?
-On January 5, 2007, 4 days before the iPhone was introduced to the world, Apple filed a suite of 4 design patents covering the basic shape of the iPhone.

-These were followed up in June of that year with a massive filing of a color design patent covering 193 screen shots of various iPhone graphical user interfaces.
-It is from these filings along with Apple's utility patents, registered trademarks and trade dress rights, that Apple selected the particular intellectual property to enforce against Samsung.
-Apple's evidence submitted to the court included side-by-side image comparisons of
iPhone 3GS
i9000 Galaxy S
to illustrate the alleged similarities in

* packaging & shape,
* icons for apps,
* iconic iPhone movements such as
bounce back action
pinch to zoom
double tap to zoom
one finger scroll
However, the images were later found to have been tampered with in order to make the dimensions and features of the two different products seem more similar, and counsel for Samsung accused Apple of submitting misleading evidence to the court.
The lawsuits between Samsung vs Apple
South Korea
United Kingdom
The Netherlands
-And then Samsung counter-sued Apple in various countries; then Apple responded to it in the same way… At the end, it has become
“the global patent wars”
so as it is known today.
Apple vs. Samsung was the first of a series of ongoing lawsuits between Apple and Samsung regarding the design of smartphones and tablet computers;

* the companies made more than half of smartphones sold worldwide as of 2012.
And Today..
-In the spring of 2011,
Apple began litigating against Samsung in patent infringement suits

By August 2011,

Apple and Samsung were litigating
* 19 ongoing cases in 9 countries.

- By July 2012,
the two companies were still
* embroiled in more than 50 lawsuits around the globe,
* with billions of dollars in damages claimed between them.
While Apple won a ruling in its favor in the US, Samsung won rulings in South Korea, Japan, and the UK.

On June 4, 2013, Samsung won a limited ban from the US International Trade Commission on sales of certain Apple products after the commission found Apple had violated a Samsung patent.
Who Controls these Checks??
- Definitely not the Turkish Patent Institute
- During the 6-month period after publication, the opposing party should apply in a written format and prove that the design is neither novel nor individual in its character
According to Article 17, the holder of the design right has exclusive rights with respect to the use of the design.
- Without the consent of the design right holder 3rd parties cannot produce, put on market, sell, offer, import the products with the registered design
- Duration of the protection of the design is 5 years after application date and can be prolonged for 25 years total, in 5 yearly periods
Now the Examples
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