Before mentioning what the proof of use is in trademark registration, it is useful to make a short summary about the trademark registration process.
In order for a phrase to be registered as a trademark, the goods and service classes that the trademark will operate in are determined and an application is made to the Turkish Patent and Trademark Office. After the trademark application is made, the trademark application is examined by the Turkish Patent and Trademark Agency according to Industrial Property Code No. 6769 article 5 whether it has reasons of absolute rejection. If no discrepancy is detected here by the Turkish Patent and Trademark Office, the trademark is announced in the official trademark bulletin which is published periodically. Within 2 months from the date of announcement, third parties may object to the trademark application in terms of Industrial Property Code No. 6769 Article 6 as being similar to another trademark. In this case, the trademark registration process does not continue until the objection to the trademark is evaluated and concluded. The proof of use is one of the defects that the applicant can claim for the trademark registration when objections are made to the trademark in accordance with Intellectual Property Code Article 6/1.
‘’ ARTICLE 6 - (1) An application for trademark registration shall be refused upon opposition if there exists a likelihood of confusion on the part of the public, including the likelihood of association with the earlier trademark, due to identity with, or similarity to, the earlier trademark and the identity or similarity of the goods or services covered.’’
What is Proof of Use?
Proof of use of existing trademark restrains other trademarks which were applied later from being registrated incase the trademarks are same or similar or cover goods and services to be the same or similar to the existing trademark and can be confused by consumers. If a trademark registration application is objected in accordance with this article, it may be possible for the trademark owner to request proof of use. At this point, proof of use should be requested within 1 month of notification of the appeal to the applicant. The proof of use has been arranged in Intellectual Property Code Article 19. The trademark which is requested to show proof of use indicating that I was registered in Turkey for 5 years in the date of the application of trademark objected. As a result, the following two conditions must meet in order to request Proof of Use.
1) An objection to the trademark registration application based on Intellectual Property Code Article 6/1.
2) The trademark to be registrated for 5 year in Turkey in the filling date of objected trademark.
The proof of use must be submitted to the Turkish Patent and Trademark Office within 1 month after the proof of use request is notified to the appealing brand owner. Otherwise, the evidence submitted to the Turkish Patent and Trademark Office will not be evaluated.
As proof of use, those mentioned below can be offered.
b) Catalog, price list and product codes
c) Product, packaging and signage samples
d) Advertisement, promotion, market research, public opinion research
e) Information on commercial activity
It should be noted that the evidence presented must prove that the tradeamark is used in accordance with the basic function of the trademark, that the distinctive character of the trademark does not change during use, that the brand is used seriously and, that the brand is used domestically. There is no need to provide evidence if the trademark is proved to be unavailable for good reason. The right reason here should be a reason that occurs without the fault of the trademark owner. For example; war, change of customs legislation, import restrictions, the important point is that the resulting obstacle occurred without the applicant's fault and will. Another important point in providing proof of use is that the evidence submitted is convenient to prove the use within 5 years before the trademark which makes the objection. After use of proof is offered, the evidences are considered by the Turkish Patent Authority and if the conclusion is that the registered trademark is in use in the last 5 years in Turkey effectively according to Intellectual Property Code 6/1 application request is rejected. If not, the objection is rejected.
Although it has been explained above with all its stages, it is an important point that the proof of use should be done by the trademark patent specialists in the field. Offering proof of use with Onal & Onal IP difference, which makes a difference with its experience and care, will increase the chance of success.