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CategoryIP Litigation
Published27 August 2026
Authors
Uğurcan TekinPartner
İnci ÖzçilsalAttorney at Law

Preliminary Injunctions and Evidence Preservation in Turkish Trademark Infringement Litigation

In industrial property disputes, time works against the right holder. An infringement action can run long at first instance alone, and the appellate stages add years. The infringing activity, as a rule, continues throughout: the counterfeit product stays on the market and the right holder's share keeps eroding. The legislature has recognised this reality. The Industrial Property Code No. 6769 sets out the claims available in the event of infringement (Article 149) and provides for preliminary injunctions to preserve the effectiveness of the action (Article 159). These provisions operate together with the general injunction regime of the Code of Civil Procedure No. 6100. Used correctly, they deliver real protection without waiting for the outcome of the case.

The most common mistake in practice is to treat the injunction request as a routine paragraph appended to the statement of claim. A preliminary injunction is an independent institution with its own conditions, its own standard of proof and its own deadlines. A request built without care is refused; a refused request alerts the other side, and the other side then has every opportunity to make evidence disappear. Injunction strategy must therefore be planned before litigation strategy, not after it.

An injunction delivers protection before judgment. Its conditions and deadlines are drawn strictly by statute.

Competent Court and Venue

Industrial property actions belong to the specialised civil courts for intellectual and industrial property rights (Article 156 of the Industrial Property Code). Where no specialised court has been established, designated civil courts of first instance take on the role, and which court is designated varies by province. On venue, the Code grants the right holder alternative options, and where the action is filed should be assessed strategically within that framework. The injunction is, as a rule, requested from the court competent for the merits; it may also be requested before the action is filed, in which case the request is directed to the court that would hear the main case.

Conditions of the Preliminary Injunction

The general condition is set by the Code of Civil Procedure: an injunction may be granted where a change in the existing situation threatens to make it significantly harder or altogether impossible to obtain the right, or where delay threatens serious harm (Article 389). In infringement disputes that condition is usually present as a matter of fact, because the counterfeit product is being sold every day and the loss grows every day. But the condition existing is not enough; it must be demonstrated concretely in the application.

The standard of proof is not full proof. The applicant must establish the likely merits of its case to the level of approximate proof (Article 390). In trademark disputes the first building block is the registration certificate: the registry record raises a presumption of ownership. The second is the evidence of infringement itself, including samples of the counterfeit product, sales records, and dated screenshots of websites and marketplace listings. An up-to-date registry record is critical at this stage. If an assignment or licence has not been recorded, the resulting doubt over standing can defeat the application before the merits are ever reached.

The Industrial Property Code lists the available measures by way of example (Article 159). The court may order the cessation of the infringing acts; it may order the seizure of the infringing goods and their delivery to a custodian; it may order security to be provided to secure eventual compensation. The application should state precisely which measures are sought. An oversized request increases the risk of refusal; a concrete and limited one is granted far more readily.

Deadlines: the Harshest Rules of the Regime

Two deadlines in the injunction regime are strict, and missing either causes the injunction to lapse automatically. The first concerns enforcement: execution of the injunction must be requested within one week of the date of the decision (Article 393 of the Code of Civil Procedure). The second concerns injunctions obtained before suit: where the injunction is granted before the action is filed, the main action must be brought within two weeks (Article 397). Tracking these deadlines is counsel's responsibility, and the calendar should be set on the day the decision is obtained.

An injunction is, as a rule, granted against security (Article 392), the purpose of which is to secure the respondent's potential loss. Where the injunction is granted without hearing the other side, an objection lies to the court that issued it (Article 394). There is also liability at the end of the road: a party shown to have been unjustified in seeking the injunction is liable for the loss it caused (Article 399). That liability demands that the strategy be built seriously. An injunction is not an instrument of pressure; it must rest on a right that can be proven, at least approximately.

“The value of an injunction emerges not on the day it is granted but on the day it is enforced. Counsel who misses the one-week enforcement window extinguishes, by their own hand, the very order they won.”

Evidence Preservation: Recording Proof Before It Disappears

Infringement evidence is not permanent. A website can be taken down overnight; a marketplace listing can be removed; a social media account can be deleted; counterfeit stock can be moved to another address. The Code of Civil Procedure provides the institution of evidence preservation for precisely this risk (Articles 400 et seq.). Evidence not yet due for examination in a pending case may be preserved, and so may evidence to be relied on in a case not yet filed. The application must establish a legal interest, which the danger of the evidence being lost or becoming difficult to adduce supplies.

In practice, evidence preservation is the preparatory stage of the injunction. For online infringement, screenshots must be documented in date-stamped form, and notarial online records are an established tool in this field. For physical goods, sampling and the invoicing chain matter. The preserved evidence serves twice: it satisfies the approximate-proof standard, and it later grounds the compensation calculation. An injunction application filed before the evidentiary record is built remains weak.

The Compensation Dimension

The injunction stops the infringement; the loss is repaired through compensation. The Industrial Property Code governs material and moral damages (Articles 149 and 150) and grants the right holder alternative methods for calculating lost profits (Article 151). One method is the net profit the infringer actually earned. Another is the licence analogy, meaning the royalty that would have been payable had the right been used under a licence agreement. The choice between them should be made at the outset of the case and should follow the evidence: where the infringer's commercial records will be accessible, the net-profit method yields a strong result; where they will not, the licence analogy is the safer ground.

Litigation Strategy

Whether to send a warning letter before seeking the injunction is a strategic decision. A warning sometimes resolves the dispute without litigation. But a warning also alerts the other side: evidence can be destroyed after it, and stock can be moved. Sending a warning before the evidentiary record is complete is therefore risky. In most cases the sound sequence is this: first the collection and preservation of evidence, then the injunction application, and only then the warning letter or the action itself. The balance of each individual case must nonetheless be assessed on its own facts.

A Pre-Action Checklist

  • Check the registry record. Assignments and licences must be recorded, and the chain of title must show no gaps.
  • Collect the evidence before applying. Document online evidence in date-stamped form and use formal evidence preservation where needed.
  • Draft the injunction request concretely and narrowly: state which acts are to be stopped and which goods are to be seized.
  • Set the deadline calendar on the day the decision is obtained: one week for enforcement, and two weeks to file the main action where the injunction preceded it.
  • Discuss the security amount and the risk of wrongful-injunction liability with the client in advance.
  • Choose the compensation method according to the evidence, deciding between net profit and the licence analogy at the start of the case.

The preliminary injunction and evidence preservation are not auxiliary features of an infringement action. Properly built, they are the instruments that decide its fate. Every day the infringement continues is written against the right holder; these instruments stop those days. Their conditions, standard of proof and deadlines are drawn strictly by statute, and success belongs to the preparation that observes that framework without exception.

Sources

  • Industrial Property Code No. 6769, Articles 149, 150, 151, 156 and 159
  • Code of Civil Procedure No. 6100, Articles 389, 390, 392, 393, 394, 397, 399 and 400 et seq.
  • mevzuat.gov.tr: current texts of the cited statutes
Related practice areaDispute Resolution & Litigation→

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