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Cancellation due to non-use of the brand.

Mustafa Yolcu
Markanın Kullanmama Sebebi İle İptali

Trademark Cancellation Due to Non-Use – Lawyer in Izmir

To ensure the continuity of commercial activity, the cancellation of unused trademarks is explicitly regulated in Article 9 of the Industrial Property Law. Thus, the legislator aimed to prevent the accumulation of backup trademarks registered with the understanding that "they might be needed later.".

Law No. 6769 Industrial Property Law
Article 9- (1) If the trademark owner does not use the trademark seriously in Türkiye for the goods or services for which it is registered within five years from the date of registration without a justifiable reason, or if its use is interrupted for five years without interruption, a decision will be made to cancel the trademark.
(2) The following situations are also considered as use of the trademark within the meaning of the first paragraph:
a) Use of the trademark with different elements without altering its distinctive character.
(b) Use of the trademark on goods or packaging solely for export purposes.
(3) Use of the trademark with the permission of the trademark owner is also considered as use by the trademark owner.

Article 26- (1) The cancellation of the trademark is decided by the Institution upon request in the following cases: a) If the conditions specified in the first paragraph of Article 9 exist…

The explanatory memorandum for Article 9 of the Industrial Property Law also states:’The article explicitly states that the trademark must be used in relation to the goods or services for which it is registered. However, the use referred to in the article is the use of the trademark in Türkiye within the scope of its purpose, in accordance with its function, that is, within commercial life, and for the fulfillment of the functions of the trademark. This use, described as "genuine use" in English, has been established in doctrine and jurisprudence as "serious use". Therefore, using the trademark through documents or advertisements solely to prevent third parties from having the trademark cancelled, and similar situations, will not be considered as use within the scope of the article.“ The purpose and conditions of the relevant regulation have been explained by including these statements.

What is Serious Use?

Upon reviewing the Turkish Patent and Trademark Office's Guide to Proof of Use regarding serious use, it is seen that the necessary elements for serious use to be accepted have been determined. These are:;

  • Serious use of a trademark requires actual use of the trademark. Therefore, symbolic use whose sole purpose is to maintain the rights arising from the trademark cannot be considered serious use.
  • The serious use of a trademark must be carried out in a manner consistent with its essential function, namely, to distinguish the origin of the goods or services for which it is registered.
  • Serious use requires not just internal use by the business using the mark, but rather the use of the mark in the market for the goods or services covered by the mark (use that will have a commercial effect).
  • Serious use must relate to goods or services that have already been launched or are about to be launched on the market and for which advertising campaigns have been prepared and delivered to customers.
  • When assessing whether a trademark use constitutes serious use, all factors and circumstances constituting the trademark's commercial use must be considered. (Whether the trademark has genuine commercial value, in particular whether this use can be seen as having the potential to create a market or generate market share for goods and services in the relevant commercial sector, etc.)
  • The specific circumstances of the case under review may require consideration, among other things, to the nature of the goods and services examined, the characteristics of the relevant market, and the frequency and extent of mark use.

In trademark cancellation cases due to non-use, the burden of proof rests with the defendant.

In cases concerning the cancellation of a trademark due to non-use, the defendant company must prove that the trademark has been used extensively in Türkiye.

The established Supreme Court rulings on this matter are also in this direction; to give some examples:;

Other works that may be of interest to you;

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