NEW AMENDMENTS TO THE REGULATION ON IMPLEMENTATION OF TURKISH CITIZENSHIP LAW
ADVERTISING LEGISLATION AMENDED
In the Official Gazette dated 01.02.2022 and numbered 31737, the Regulation Amending the Regulation on Commercial Advertising and Unfair Commercial Practices (“Regulation”) was published. The relevant Regulation will enter into force on 01.03.2022 and the amendments are important for the sector. Let's take a look at the innovations brought by the Regulation.
A BASIC ROADMAP FOR STARTUPS
HOW TO ACQUIRE TURKISH CITIZENSHIP BY INVESTMENT
THE LEGAL PROCEEDINGS OVER THE INFRINGEMENT OF TRADEMARK RIGHTS BY UNFAIR USE OF DOMAIN NAME
Trademark and service mark owners whose registered trademark is registered as domain name by the third parties, have the right to initiate legal actions against such third parties claiming that their trademark right is infringed.
Application to WIPO Arbitration and Mediation Center
Uniform Domain Name Resolution Policy (‘’UDRP’’) adopted by the Internet Corporation for Assigned Names and Numbers (‘’ICANN’’) in 1999, which is incorporated by reference into registration agreements signed by those who seek to register a domain name, sets forth arbitration as a method of settling any disputes arising from the registration and use of a registered domain name. Currently, six service providers are entitled to conduct the arbitral process in accordance with the UDRP. World Intellectual Property Organization (‘’WIPO’’) is the most commonly preferred service provider.
Registered trademark/service mark owners can request from WIPO Administrative Panel either the disputed domain name be transferred to themselves or be cancelled/changed, provided that the applicant (referred to as ‘’Complainant’’) proves that each of three elements listed below are present.
i. The domain name of the Registrant (as defined under the UDRP), is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
ii. The Registrant has no rights or legitimate interests in respect of the domain name; and
iii. The Registrant’s domain name has been registered and is being used in bad faith.
While the proof of the first element mentioned above varies from case to case, it is held in numerous WIPO panels that a domain name of the Registrant is identical or confusingly similar for the purposes of the UDRP, when a domain name incorporates a registered trademark of the complainant in full (See: Magnum Piering, Inc v. The Mudjackers and Garwood S. Wilson Sr., WIPO Case No. D2000-1525), even if the domain name includes suffixes and/or additions such as sounds, syllables or signs.
The second element which must be also sufficiently demonstrated by the Complainant, is relatively hard to prove. Therefore, as per the precedents of WIPO, if the Complainant makes a prima facie showing that the Registrant lacks right or legitimate interest, proof of burden shifts to the Registrant (See: Crotia Airlines d.d.v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455). In light of the foregoing, once the Complainant reasonably shows that the Registrant has no right or legitimate interest in the domain name, it will be the Registrant who will have to submit a response proving the opposite.
Finally, the Complainant must prove that the disputed domain name is registered and used in bad faith by the Registrant. For instance, domain name holders trying to sell the registered domain name at exorbitant prices to the trademark owner or its rivals, as frequently encountered in practice, is considered as a sign of bad faith.
Filing a Lawsuit Before The Competent Courts
Another solution for preventing the infringement of a trademark by unfair use of a domain name is to file a lawsuit under Article 7 and Article 9 of the Industrial Property Code No: 6769 (the ‘’IPC’’) and thereby request from the court permanent blocking of access to the relevant website hosted on the disputed domain name.
In such a lawsuit, the plaintiff has the right to request determination of infringement, cessation of existing infringements, and prevention of possible infringements in accordance with Article 149 of the IPC along with pecuniary and non-pecuniary damages, if any. Furthermore, temporary access-blocking to the website might be requested as a provisional injunction before filing a lawsuit or during a pending case. It is worth mentioning that Turkish Higher Court of Appeal considers using a registered trademark in a domain name an infringement under the IPC (See: T.C. Yargıtay 11. Hukuk Dairesi E. 2015/13656 K. 2017/1555 T. 15.3.2017).
We would like to stress that filing an application to WIPO Arbitration and Mediation Center shall not prejudice none of the parties’ right to bring a lawsuit before the competent courts. Indeed, in some of its Administrative Panel Decisions, WIPO addresses the courts to rule the cases where the main issue does not merely involve cybersquatting or other abusive domain name registration, stating that the UDRP is only intended for cases which clearly relates to cybersquatting or other abusive domain name registration. It is also worth noting that even for such cases the authority of the panelists to review is not exclusive (See: Levantur, S.A. v. Media Insight, WIPO Case No. D2009-0608).
Having explained that parties’ right to file an application to WIPO Arbitration and Mediation Center is not exclusive, we would like to underline that a lawsuit brought before courts may indeed impact implementation of WIPO’s arbitral awards. If the non-prevailing party brings a lawsuit before the competent court claiming ownership over the disputed domain name and demonstrate this to ICANN by submitting official documentation such as a copy of the complaint or file-stamped by the clerk of the court within the ten business day from ICANN is officially notified by WIPO, implementation of WIPO’s arbitral awards will be delayed. In this case, ICANN shall take no further action until the receipt of evidence satisfactory of a resolution between parties or of the lawsuit has been dismissed or withdrawn, or receipt of a copy of the order from such court dismissing the lawsuit or ordering that the plaintiff does not have the right to continue use the disputed domain name.
Filing a Criminal Complaint
The IPC also includes criminal provisions related to trademark infringements. As set forth under Article 30, a person who produces goods or provides services, sells, offers, imports or exports goods or services, purchases, possesses, transports, stores goods or services for commercial purposes in violation of a trademark right by identical use or use without sufficient distinctive adaptation, shall be sentenced from one year to three years of imprisonment and punished with judicial fine up to twenty thousand days. In accordance with this article, trademark owners may file a criminal complaint against any person who commercially uses a registered mark in a domain name or content of a relevant website since such actions fall under the scope of criminal liability laid down by the law.
The Announcement of the Turkish Ministry of Treasury and Finance Regarding the Potential Imposition of a Sanction upon Non-Compliance with the Communiqué Nr. 2008-32/34 Regarding the Decree Nr. 32 on the Protection of the Value of the Turkish Currency with respect to the determination of the amounts in Foreign Currency Based or Indexed Contracts [EN]
The Turkish Ministry of Treasury and Finance announced that in the event amounts in foreign currency based or indexed contracts would be re-applied as based or indexed in foreign currency or determined again in foreign currency or as foreign currency indexed following the transition period of two years stipulated by the Communiqué Nr. 2008-32/34 Regarding the Decree Nr. 32 on the Protection of the Value of the Turkish Currency, sanctions will be imposed according to the Turkish foreign exchange legislation.
On 13th of October within this week, the Turkish Ministry of Treasury and Finance made an announcement on its official website with the headline “Announcement Regarding the Foreign Currency Based or Indexed Contracts”.
As it is known, as per the Presidential Decision Nr. 85 published in Turkish Official Gazette on 12 September 2018 several changes have been made on the Decree Nr. 32 on the Protection of the Value of the Turkish Currency. Accordingly, residents in Turkey were urged to use Turkish currency in contracts they have entered among themselves and the Turkish Ministry of Treasury and Finance was assigned to issue a Communiqué for the announcement of contracts, which could be exempted from the mentioned requirement. The said communiqué entered into force after being published in the Official Gazette dated 6 October 2018 and some amendments were made in the Communiqué on the Decree No. 32 on the Protection of the Value of Turkish Currency (Communiqué Nr: 2008-32/34) according to which the scope of the contracts that could be issued in foreign currency was expanded. Additionally, a stamp duty circular was issued for explaining the conditions to benefit from the stamp duty exemptions in contracts that cannot be determined in foreign currency and therefore have to be converted into Turkish Lira.
In its announcement of 13th of October within this week, the Turkish Ministry of Treasury and Finance published that in the aforementioned regulations, if the contracting parties fail to agree on the conversion to Turkish lira, principles to convert amounts to Turkish currency along with the rate of increase to be applied to the amounts determined as Turkish lira in residential and roofed workplace lease contracts during the two-year transition period were determined. The Turkish Ministry of Treasury and Finance further declared that the transition period will end with the expiry of the two-year term and if the parties fail to agree on the rate of increase to be applied to Turkish lira amounts, they will be subject to the limits set forth in Article 344 of the Turkish Code of Obligations Nr. 6098, which regulates the determination of the rental fee.
As it will be remembered, before the date when the provisional Article 8 of the Decree Nr. 32 on the Protection of the Value of Turkish Currency entered into force, i.e. before 13 September 2018, in residential and roofed workplace lease contracts; it was decided that for a period of two years the amounts determined as foreign currency or foreign currency indexed rates are stated in Turkish Lira as per the provision arising from the first paragraph of sub-paragraph 28 of Article 8 of the Communiqué Regarding the Decree Nr. 32 (Communiqué: 2008/ 32-34). However, it was announced that to be valid for one year from the end of the rental year in which the Turkish currency is determined, the rental fee fixed in Turkish currency in accordance with the aforementioned paragraph, if not settled by the parties while determining the reconciliation, would be increased by taking into account the consumer price index (CPI) monthly variation rates declared by the Turkish Statistical Institute for each month beginning from the date of determination of the rental fee until the end of the rental year in which such rental fee was fixed. In determining the rental fee for the next year, if not settled by the parties, it was announced that such rental fee would be determined by increasing the rental fee applicable in the previous year by taking into account the consumer price index (CPI) monthly variation rates declared by the Turkish Statistical Institute, which shall be valid until the end of the aforementioned two-year period.
This two-year period has been determined as a transition period, and the Turkish Ministry of Treasury and Finance declared in this announcement that after the expiry of the two-year period foreseen for the transition period, it will not be possible to apply the amounts in the above mentioned contracts in foreign currency or indexed to foreign currency or to determine in foreign currency or indexed to foreign currency in the contrary of which the required sanctions will be imposed as per the foreign exchange legislation.
Foreign Investment Adjustment in Public-Sector Digitization
New Requirements for Foreign Investors to use KEP (Registered Electronic Mail) address within the Scope of Public-Sector Digitization.
Upon publication of the “Amendment Regulation on the Implementation Regulation of the Turkish Foreign Direct Investment Law” in the Turkish Official Gazette dated 16 October 2020, new requirements have been brought with respect to the foreign investment activities to be conducted as per the Foreign Direct Investment Law for the use of Registered Electronic Mail (KEP). In this context, Registered Electronic Mail has been acknowledged in pursuing procedural transactions with respect to foreign investments. Thus, the use of Registered Electronic Mail (KEP) in any correspondence with the Turkish Ministry of Industry and Technology by foreign investors have been enabled.
Please visit the following link https://www.resmigazete.gov.tr/eskiler/2020/10/20201016-4.htm for the full details of the “Amendment Regulation on the Implementation of Regulation of the Turkish Foreign Direct Investment Law” in Turkish language.
Previously, foreign share capital companies and branches conducting their activities in Turkey were requested to send documents required by the “Foreign Direct Investment Law” Nr. 4875 in printed form to the “General Directorate for the Incentive Implementation and Foreign Investment”. As of 1 June 2018, the said requirement was changed upon which foreign share capital companies and branches were urged to send such forms electronically via authorized users and within the same statutory periods through Electronic Implementation Application and Foreign Investment Information System (E-TUYS). According to the aforementioned system, any notification was supposed to be made electronically by only “authorized users”.
However, upon the amendment made as of today, authorized users are mandated to maintain qualified electronic signature to be obtained from electronic certificate service providers whereby foreign investment companies and branches falling within the scope of the Foreign Direct Investment Law have to maintain Registered Electronic Mail (KEP) to be obtained from the relevant service provider.