TMT and Intellectual Property

THREE-DIMENSIONAL TRADEMARKS IN TURKISH IP LAW

Nowadays, the way people access information is rapidly changing and developing. The way that companies present their trademarks to their customers is also in line with this change. For these reasons, Companies turn to non-traditional tradearks in order to make a difference and be interesting to customers. Three-dimensional brands are among the most preferred non-traditional trademark. 

What is the Three-Dimensional Mark Concept?

In Article 4 of the Industrial Property Law No. 6769 (“Law”), “Trademarks may consist of any signs like words, including personal names, figures, colours, letters, numbers, sounds and the shape of goods or their packaging, provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings and being represented on the register in a manner to determine the clear and precise subject matter of the protection afforded to its proprietor.” In this context, it is possible to use the term “three-dimensional mark” for shapes and designs that have unique and distinctive features. 

Registration of the Three-Dimensional Mark Concept:

In terms of the law, the first and most important factor for a sign to be registered as a trademark is that the sign has a distinctive feature from other signs. The second important factor is that the trademark be presented in the registry in such a way that it is clearly understand that it is protected by the person who owns the property. The criteria sought for three-dimensional marks are actually as same as the criteria sought for traditional trademarks, however a tighter control is required due to the nature of the sign. Because it is not possible to register the shape of 3D marks due to their nature or the standard and designs that can be known by everyone. For example, the application for the registration of an ordinary beverage bottle was rejected because it does not contain any distinctive features and may evoke any beverage in the eyes of the consumer. For this reason, while a three-dimensional mark will be registered, it is necessary not to choose the shapes that are used a lot in standard and commercial life, even if it is a sign, image or packaging. Apart from these, the following points should be considered in the registration application of the three-dimensional trademark:

  • It is clearly stated in the registration application that the nature of the application is a three-dimensional trademark application,
  • Uploading a sample of the trademark to the system, where the sign, design or package to be registered is clearly visible and contains a view from a single direction.
  • A copy of the sign, design or package that is intended to be registered must be uploaded to the system, including the view from a maximum of six different aspects, in a way that does not impair the trademark integrity.

Within the scope of Article 5 of the Law, absolute grounds for refusal are counted regarding trademark registration applications. If the regulations in this legal memorandum in question need to be briefly summarized in terms of three-dimensional marks, the shape of a sign, an image or a package;

  • due to the nature of the goods,
  • gives the property its core value or
  • it is necessarily formed as a result of a technical necessity;

Even if the sign, design or packaging is not used continually in the commercial life, it will not be possible to gain a distinctive feature and at the same time, it will not be possible to be registered as a three-dimensional trademark.

Protecting the Three-Dimensional Mark Concept:

According to the Law, three-dimensional signs can be registered within the scope of design registration, as well as a three-dimensional trademark. According to the law, legal protection is provided for up to 25 years, provided that a renewal process is made every 5 years from the date of application for the signs for which the design has been registered. For the registered marks, legal protection is provided for an indefinite period, provided that the renewal process is carried out every 10 years. For these reasons, companies turn to trademark registration, which provides longer-term protection, in order to register their original and distinctive signs or designs. 

As a result, in today’s trade conditions, it has become a necessity to register a three-dimensional sign, design or packaging as a trademark, as well as traditional trademarks. 

 

Buse Mercan, Attorney At Law

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