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CategoryTrademark
Published14 February 2026
Authors
Uğurcan TekinPartner
Alican TekinPartner
İnci ÖzçilsalAttorney at Law

Opinions and Criticisms on the Practical Application of Article 6/3 of the Industrial Property Code

As a rule, trademark rights arise upon registration before the Turkish Patent and Trademark Office, and protection takes effect with that registration. Article 6 of Industrial Property Code No. 6769 sets out the relative grounds for refusal in nine sub-paragraphs. Article 6/3, however, constitutes a deliberate exception: a sign that has acquired distinctiveness through actual use in commerce before the application date may, under defined conditions, defeat a later application.

Article 6/3 provides that “if a right to an unregistered trademark or to another sign used in the course of trade was acquired prior to the date of application or the date of priority claimed for the application for registration of a trademark, the trademark application shall be refused upon opposition of the proprietor of that prior sign.” The provision is of considerable importance for the protection of unregistered marks.

Through this provision, the interests of the genuine right holder who actually uses the mark — even without registration — are protected, and an exception is introduced to the fundamental principle that trademark rights may be acquired only through registration. In other words, Article 6/3 establishes a limited exception regime permitting the acquisition of rights through use, independently of registration.

This article examines the conditions governing the protection of unregistered signs under Article 6/3, the legal basis of that protection, and its place in practice, in the light of scholarly opinion and the case law of the Court of Cassation. Within that examination we also address a phenomenon that has become increasingly visible: court-appointed experts who effectively place themselves in the position of the legislature or the judge, extending the statutory provision to the point where the protection of registered rights becomes almost impossible.

Prior use is an equity-based exception to the registration principle — but it is an exception, not a general rule.

The Elements of Article 6/3

For Article 6/3 to apply, the party claiming protection must prove that it began using its mark earlier, that the mark has acquired distinctive character, and that it has attained a certain degree of recognition in commercial life. In addition, the unregistered sign must be used in respect of goods and services that are identical or similar to those covered by the contested application, and that use must be proven; this constitutes the precondition for benefiting from the protection of the provision.

For the opposition to be upheld, there must further exist identity, similarity or a likelihood of confusion between the opponent’s unregistered sign and the sign that is the subject of the application. Against that background, and in line with the prevailing views in the case law and in scholarship, the conditions of applicability of Article 6/3 are examined in detail below.

Use Must Predate the Application or Priority Date

The right based on prior use may be invoked only where the mark was actually put to use before the application or priority date. “Use” here means that the sign has been actively used in commercial activities. Preparatory acts undertaken with a view to using the mark in the future — design work, registration planning, or company incorporation formalities — do not in themselves create rights. Preparations relating to the design of a mark, plans for a registration application, or corporate formation procedures are directed only towards potential use and are insufficient for the emergence of genuine right holdership.

The case law supports these principles. In its decision of 13 February 2019 (Case No. 2017/3943 E., 2019/1154 K.), the 11th Civil Chamber of the Court of Cassation held that “pursuant to the principle of genuine right holdership, where a prior right over the sign has been acquired within Türkiye before the trademark application, through intensive and consistent use in respect of the goods and services covered by the registration, priority is granted to the person who is the genuine right holder of that sign.” This decision makes clear that a right based on prior use arises not from symbolic or incidental use but from continuous and stable activity.

Moreover, as expressly stated in the legislative rationale of Article 6/3, “use of the sign as a trademark shall be required.” This indicates that use of the sign merely for promotional or decorative purposes is insufficient; the sign must be used in a manner that indicates the commercial origin of the goods or services. Accordingly, use of a term in a purely descriptive or explanatory manner does not give rise to genuine right holdership. Where, however, the sign distinctly evokes the trademark and indicates to the consumer the origin of the goods, the use acquires trademark character. For example, where Adidas’s three stripes are applied to another manufacturer’s shoe, those stripes are perceived not as mere decoration but as elements evoking the trademark; such use is therefore trademark use and falls within the scope of trademark protection.

The requirement that the sign be used as a distinctive element and in a trademark sense has been addressed in the case law: use of a sign, together with certain distinctive elements, solely within a trade name does not constitute trademark use and therefore confers no superior right on the party invoking it. According to the Court of Cassation, for the right of opposition to be valid the unregistered sign must have been used in the course of trade and in a manner specific to trademark law; in its decision numbered 2002/11-62 E., 2002/115 K., the 11th Civil Chamber held that the nature of the sign appearing in the defendant’s trade name did not affect the plaintiff’s rights.

The concept of genuine right holdership is explained in scholarship as follows: “the right of priority over a trademark belongs to the person who creates and uses that mark and renders it known in the market. That person is called the genuine right holder.” The fact that a sign has become known in the market — that is, has acquired recognition within a particular circle — is a strong indication of its use as a trademark. A further contested issue is whether the requirement of notoriety or recognition must be satisfied at all. Before the era of the Decree-Law on the Protection of Trademarks, the exercise of a right of priority required that the sign had been used by the genuine right holder before the third party’s application date and had acquired recognition in the market. Under the Decree-Law, the recognition requirement was not expressly retained. This has given rise to divergent interpretations in the application of the right based on prior use.

Ultimately, intensive and continuous use of the mark before the application date is a decisive element for the recognition of a right of priority. Accordingly, it must be possible to prove that the mark was actually used before the application or priority date, and the burden of proof lies with the party asserting it. As the Court of Cassation has noted, proof of prior use is mandatory: “although it was submitted that the term had also been used before the trademark registration, there is no evidence among the plaintiff’s evidence supporting that assertion…”

Consequently, a natural or legal person able to prove that it actually used the mark before registration may invoke the right of priority and is protected as the genuine right holder.

The Use Must Be Genuine and Continuous

The concept of genuine use must be interpreted in connection both with the ground of revocation for non-use under Article 9 of the Industrial Property Code and with Article 6/3. Article 9 provides that “a trademark that has not been put to genuine use in Türkiye by the proprietor in respect of the goods or services for which it is registered, without a justified reason, within five years from the date of registration, or the use of which has been suspended for an uninterrupted period of five years, shall be revoked.”

“Genuine use” (genuine use; ernsthafte Benutzung) means use of the mark in the market in an economically meaningful manner, for commercial purposes, over a defined period and on a continuous basis.

As stated in the decision of the 11th Civil Chamber of the Court of Cassation dated 13 May 2019 (Case No. 2018/2275 E., 2019/3674 K.), use must be genuine and must extend beyond a purely local level to a wider geographical area; it must further be capable of conferring a certain degree of distinctiveness on the sign forming the subject of the trademark.

In practice, the following criteria are taken into account when assessing whether use is genuine:

  • The economic dimension of the use — sales volume, duration and geographical spread
  • Whether the use took place within a commercial system, on a systematic basis
  • Whether the use performs a trademark function — that is, whether it indicates origin

Symbolic, incidental or limited use is not accepted within this scope. For example, the appearance of the mark on an invoice once a year, purely for the purpose of maintaining protection, cannot be regarded as “use”. The existence of genuine use requires proof that the mark actively functions in the relevant market in the promotion and offering of goods or services.

As frequently emphasised in the case law, the mere fact that an infringement action has been filed, that limited sales have been invoiced in small amounts, that the mark has been renewed, that a licence has been granted, that the mark appears in catalogues, or that it has been used on promotional items, is not sufficient in itself to establish genuine and continuous use.

Use of the mark with different elements, without altering its distinctive character, and use on goods or their packaging solely for export purposes, are likewise regarded as use of the mark. Moreover, use of the mark with the consent of the proprietor is deemed to be use by the proprietor.

In this context, the distinctive character must be maintained without alteration; otherwise the use will be regarded as relating to a new mark. Whether the distinctive character has been altered is determined by first identifying that character and then assessing whether the modification made affects that element.

The requirement that the sign be used with its distinctive element and in a trademark sense was explained in the decision of the 11th Civil Chamber of the Court of Cassation dated 13 June 2017 (Case No. 2002/11-62 E., 2002/115 K.): “Since the defendant used this sign in its trade name together with certain distinctive words, that use did not confer a superior right on the plaintiff. For the defendant’s right of opposition to be valid, the unregistered sign must have been used in the course of trade. Use in the course of trade requires use specific to trademark law. In the case at hand, having regard to the nature of the sign appearing in the defendant’s trade name, it did not affect the plaintiff’s rights…”

Invoices, orders, advertising spend and distribution agreements are the backbone of a prior-use claim.

Use in Identical or Similar Classes of Goods and Services

Protection under Article 6/3 applies only in respect of goods and services that are identical or so similar as to be indistinguishable. The reason lies in the concept of likelihood of confusion, which underpins the protection. Two conditions must be satisfied together for a likelihood of confusion to exist:

  • The sign must be identical to, or similar to, the registered trademark
  • The sign must be used in respect of goods and services identical or similar to those for which the trademark is registered

First, in order to invoke genuine right holdership under Article 6/3, the party opposing on the basis of prior use must demonstrate in connection with which goods and services it has actually used the sign in dispute, earlier than the applicant.

Indeed, in determining prior rights arising from earlier use, the class and sub-class approach applies. Accordingly, under Article 6/3, where a superior and prior right has been acquired through earlier use in respect of particular goods and/or services, the bar to registration exists only for those goods and/or services and for goods and services in similar classes; invalidity should be ordered only for those goods and/or services and similar classes, and the invalidity claim should be dismissed in respect of the remaining classes.

In practice, experts interpret the concept of “genuine right holdership” far more broadly than the limits foreseen by the legislature. This approach results in right holdership being recognised even for classes of goods or services in which the mark has never been used, and expands the scope of protection to an unacceptable degree.

For example, treating a chef who presents television programmes — but who does not in fact operate in the restaurant sector — as the genuine right holder for food products or restaurant services merely on account of his fame is contrary to the essence and purpose of the right. The consumer group addressed by a person operating in the media sector does not overlap with the consumer group directed towards an entirely different class such as restaurant services. Likewise, the fact that a sign is well known in a particular sector — for instance media or entertainment — does not automatically create genuine right holdership in a different sector, such as beauty or accommodation services.

Nevertheless, in recent years experts have been observed to expand this field of protection excessively, particularly in respect of persons with a high public profile. This leads to an extraordinary widening of the limits of protection foreseen under Article 6/3 of Industrial Property Code No. 6769 and to the purpose of the provision being exceeded.

Such expansive interpretations have the effect of allowing experts, in practice, to assume the role of the legislature, and they undermine the legal certainty of registered proprietors. Protection should be recognised only for those sectors in which the trademark function is actually performed; general fame should not, in itself, create right holdership for service classes in which the party has never operated.

Accordingly, the protection afforded under Article 6/3 must be applied only in respect of identical or similar goods and services. It is of great importance that genuine right holdership be established on the basis of concrete instances of use, within those limits, and without allowing the scope of protection to spill over into different classes.

Distinctiveness and Reputation

Distinctiveness is the raison d’être of a trademark and the fundamental condition of protection. For an unregistered sign to be protected under Article 6/3, it must have acquired distinctive character or, at the very least, attained a certain level of recognition within the relevant circle.

While the Paris Convention provides protection for well-known marks only in respect of identical or similar goods, the scope of that protection was expanded by Article 16 of the TRIPS Agreement. Accordingly, where the mark applied for is capable of being associated with a well-known mark and there is a likelihood that such use would be detrimental to the reputation or distinctive character of the well-known mark, well-known marks may also be protected in respect of dissimilar goods and services. Under Turkish law, however, it is accepted as a rule that well-known marks may not benefit from this extended protection in respect of different goods and services.

Against that background, a distinction must be drawn between general fame and trademark-specific recognition in a particular sector. The fact that a person is known to the public or through the media does not produce the same result in trademark terms. As explained above, use must relate to identical or similar goods and services. For instance, it is not possible to identify the name of a person who has become known through broadcasting in the beauty sector with cosmetic products merely on the basis of that recognition. Trademark protection is acquired through actual use as a trademark; personal fame does not, in itself, confer “distinctive character” or “reputation” in the relevant sector. Furthermore, protecting a name known in the broadcasting field in a sector in which it has not previously operated would mean extending the limits of the provision through so broad an understanding of protection.

At this point there is an important difference between the concepts of “distinctiveness” and “notoriety” (recognition). Distinctiveness means that the mark is capable of indicating the origin of goods or services, whereas notoriety means that the mark has acquired recognition within a particular circle. The fact that a sign has become known will in most cases also entail its acquisition of distinctive character. It cannot be said, however, that every distinctive sign is well known.

Scholarship and the case law accept that signs which have acquired distinctiveness through use may also be protected under Article 6/3. Accordingly, where a sign that was initially non-distinctive has, as a result of continuous and intensive use, come to evoke a particular commercial origin in the mind of consumers, it may thereafter be protected as a trademark.

In various decisions of the Court of Cassation, unregistered signs that have been used in the same sector for a long period, supported by promotional activities and having attained a certain recognition in the market, have been protected under Article 6/3. That protection, however, requires not an absolute level of fame but a recognition limited to the relevant sector and region.

General fame in one sector does not, by itself, create genuine right holdership in another.

Use in Conformity with Equity

Finally, the right based on prior use must be exercised in conformity with the rule of good faith under Article 2 of the Turkish Civil Code. Use that is in bad faith, misleading or imitative does not fall within the scope of Article 6/3.

In other words, where the right based on prior use is asserted with the aim of taking unfair advantage of another’s trademark or of creating confusion, protection cannot be afforded. According to the settled practice of the Court of Cassation, acts of branding or use carried out in bad faith do not constitute an interest worthy of legal protection.

The limits of the prior-use right are likewise drawn by the principle of equity. Protection is confined to the goods or services in respect of which the mark is actually used, and extended claims going beyond that scope are not accepted. In this way, abuse of the provision is prevented and the integrity of the registration system is preserved.

Conclusion

Article 6/3 of the Industrial Property Code is a narrow but important exception to the registration principle in trademark law. Its purpose is to protect the genuine right holder who, although it has not registered its mark, actually uses it and, through that use, has brought the sign to a certain level of recognition and distinctiveness within the relevant circle. That protection is not, however, unlimited; it applies only where use has occurred in a trademark sense, where the use is genuine and continuous, where it predates the application date, and where there is a likelihood of confusion in identical or similar classes of goods or services.

Moreover, personal fame or general recognition does not, in itself, afford protection under Article 6/3; protection is possible only in respect of the goods or services for which the sign actually performs a trademark function. Being well known in different sectors or among different consumer groups is therefore not sufficient for a claim of genuine right holdership.

In conclusion, this exceptional regime for the protection of unregistered marks must be applied within the limits of the rule of good faith and the principle of equity, ensuring that the legal foreseeability and commercial certainty which are the fundamental aims of the registration system are not undermined. In that respect, Article 6/3 should be regarded as a balancing mechanism that complements, rather than displaces, the registration system.

Bibliography

  • KARA, Elif, Türk Marka Hukukunda Gerçek Hak Sahipliği İlkesi, On İki Levha Yayıncılık, 1st Edition, October 2018.
  • KARMUTOĞLU, B., Geleneksel Olmayan Markaların Tescili, İstanbul: On İki Levha Yayıncılık, 1st Edition, September 2023.
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