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Recent Developments in TURKPATENT's Practice on Recording of Well-known Trademarks

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Recent Developments in TURKPATENT's Practice on Recording of Well-known Trademarks

Posted | Updated by Insights team:

Publication | Update:

Apr 2023
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The Turkish Court of Cassation’s decision (No. 2019/2980 E-2020/991 K of February 5, 2020) had been...

We have previously reported on the Turkish Court of Cassation’s decision concluding that the Turkish Patent and Trademark Office (hereinafter will be referred to as “TURKPATENT” or “the Office”) has no authority to create and maintain a registry for well-known trademarks and discussed possible repercussions of this decision for trademark owners. (Please see https://www.worldtrademarkreview.com/article/court-of-cassation-reopens-debate-recordation-of-well-known-trademarks)

The Turkish Court of Cassation’s decision (No. 2019/2980 E-2020/991 K of February 5, 2020) had been finalized as the Court of First Instance did not resist in its decision. Although the plaintiff appealed the decision of the first instance court, the plaintiff’s appeal was dismissed since the same chamber of the Court of Cassation made the examination. Therefore, the decision of the Court of First Instance rendered in accordance with the Court of Cassation’s decision has become final.

In this article, we will examine how the practice has been shaped in the light of this decision and predict what to expect in the future.

The latest developments since finalization of the decision signal a new regulation

The First Instance Courts and Regional Courts of Appeals have adopted the decision of the Court of Cassation and given dismissal decisions in pending court actions that are of the same nature. In these dismissal decisions, they made reference to the decision of the Court of Cassation and the reasoning was the same: TURKPATENT has no authority ordered by law to keep an official registry for recording well-known trademarks, and there is no legal benefit in initiating a cancellation action against the Office due to the rejection of an application to record trademarks as well-known since the well-known status of a trademark should be proven in a given case where it is argued in accordance with established precedents.

On the other hand, TURKPATENT has continued to maintain its registry for recording well-known trademarks and has accepted and processed applications, and even recorded new trademarks on the well-known trademark registry. The Office has also listed the official fee for filing for determination of the trademarks in its updated 2023 tariff, as in previous years, which is another indication that it will continue its practice.

The newly appointed president of TURKPATENT made a statement regarding the Office’s decision in relation to the well-known trademark register at a consultation meeting with trademark attorneys in Ankara. The President stated that the Office will not abandon the well-known trademark registry practice and has no plan to do so in the future. He stated that they are planning to amend the relevant rules of the legislation by including "holding a specific registry for well-known trademarks" among the duties of the Office in the legislation, which should be sufficient to overcome the reasoning of the Court of Cassation in its decisions, where it found the practice of maintaining a well-known trademark register by the Office as legally groundless. He also emphasized that they had been receiving applications for recording well-known trademarks, even after the decisions of the Court of Cassation, and they recently started to decide on the applications.

Currently, the Courts and the Office have different interpretations and implementations of recording of well-known trademarks. While the Courts follow the decision of the Court of Cassation, the Office has not made any change to its implementation despite the finalization of the decision. It is expected that this difference between the Courts and the Office shall be resolved with a new regulation that will explicitly give the Office authority to maintain the well-known trademark registry.

Considering that TURKPATENT maintains its long-lasting practice, right holders may continue filing applications for determination and recording of the well-known status of their trademarks if there is evidence and if they think that their chances are high. However, if an application for recording of a well-known trademark is rejected, there is no benefit in filing a court action against the decision of the Office unless there is no change in the current legislation, in view of the decisions of the Court of Cassation.

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Forecast methodology

The future outlook “forecast” is based on a set of statistical methods such as regression analysis, industry specific drivers as well as analyst evaluations, as well as analysis of the trends that influence economic outcomes and business decision making.
The Global Economic Model is covering the political environment, the macroeconomic environment, market opportunities, policy towards free enterprise and competition, policy towards foreign investment, foreign trade and exchange controls, taxes, financing, the labour market and infrastructure. We aim update our market forecast to include the latest market developments and trends.

Forecasts, Data modelling and indicator normalisation

Review of independent forecasts for the main macroeconomic variables by the following organizations provide a holistic overview of the range of alternative opinions:

  • Cambridge Econometrics (CE)

  • The Centre for Economic and Business Research (CEBR)

  • Experian Economics (EE)

  • Oxford Economics (OE)

As a result, the reported forecasts derive from different forecasters and may not represent the view of any one forecaster over the whole of the forecast period. These projections provide an indication of what is, in our view most likely to happen, not what it will definitely happen.

Short- and medium-term forecasts are based on a “demand-side” forecasting framework, under the assumption that supply adjusts to meet demand either directly through changes in output or through the depletion of inventories.
Long-term projections rely on a supply-side framework, in which output is determined by the availability of labour and capital equipment and the growth in productivity.
Long-term growth prospects, are impacted by factors including the workforce capabilities, the openness of the economy to trade, the legal framework, fiscal policy, the degree of government regulation.

Direct contribution to GDP
The method for calculating the direct contribution of an industry to GDP, is to measure its ‘gross value added’ (GVA); that is, to calculate the difference between the industry’s total pre­tax revenue and its total bought­in costs (costs excluding wages and salaries).

Forecasts of GDP growth: GDP = CN+IN+GS+NEX

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  • Investment as a function of the return on capital and changes in capacity utilization; Government spending as a function of intervention initiatives and state of the economy;

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All relevant markets are quantified utilizing revenue figures for the forecast period. The Compound Annual Growth Rate (CAGR) within each segment is used to measure growth and to extrapolate data when figures are not publicly available.

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Our market segments reflect major categories and subcategories of the global market, followed by an analysis of statistical data covering national spending and international trade relations and patterns. Market values reflect revenues paid by the final customer / end user to vendors and service providers either directly or through distribution channels, excluding VAT. Local currencies are converted to USD using the yearly average exchange rates of local currencies to the USD for the respective year as provided by the IMF World Economic Outlook Database.

Industry Life Cycle Market Phase

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  • Nascent: New market need not yet determined; growth begins increasing toward end of cycle

  • Growth: Growth trajectory picks up; high growth rates

  • Mature: Typically fewer firms than growth phase, as dominant solutions continue to capture the majority of market share and market consolidation occurs, displaying lower growth rates that are typically on par with the general economy

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The Global Economic Model
The Global Economic Model brings together macroeconomic and sectoral forecasts for quantifying the key relationships.

The model is a hybrid statistical model that uses macroeconomic variables and inter-industry linkages to forecast sectoral output. The model is used to forecast not just output, but prices, wages, employment and investment. The principal variables driving the industry model are the components of final demand, which directly or indirectly determine the demand facing each industry. However, other macroeconomic assumptions — in particular exchange rates, as well as world commodity prices — also enter into the equation, as well as other industry specific factors that have been or are expected to impact.

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The principal explanatory variable in each industry’s output equation is the Total Demand variable, encompassing exogenous macroeconomic assumptions, consumer spending and investment, and intermediate demand for goods and services by sectors of the economy for use as inputs in the production of their own goods and services.

Elasticities
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Demand elasticities measure the change in the quantity demanded of a particular good or service as a result of changes to other economic variables, such as its own price, the price of competing or complementary goods and services, income levels, taxes.
Demand elasticities can be influenced by several factors. Each of these factors, along with the specific characteristics of the product, will interact to determine its overall responsiveness of demand to changes in prices and incomes.
The individual characteristics of a good or service will have an impact, but there are also a number of general factors that will typically affect the sensitivity of demand, such as the availability of substitutes, whereby the elasticity is typically higher the greater the number of available substitutes, as consumers can easily switch between different products.
The degree of necessity. Luxury products and habit forming ones, typically have a higher elasticity.
Proportion of the budget consumed by the item. Products that consume a large portion of the consumer’s budget tend to have greater elasticity.
Elasticities tend to be greater over the long run because consumers have more time to adjust their behaviour.
Finally, if the product or service is an input into a final product then the price elasticity will depend on the price elasticity of the final product, its cost share in the production costs, and the availability of substitutes for that good or service.

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Prices are also forecast using an input-output framework. Input costs have two components; labour costs are driven by wages, while intermediate costs are computed as an input-output weighted aggregate of input sectors’ prices. Employment is a function of output and real sectoral wages, that are forecast as a function of whole economy growth in wages. Investment is forecast as a function of output and aggregate level business investment.

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