Turkey’s state of emergency: impact on IP

03-10-2016

Işık Özdoğan and Ezgi Baklacı

After July 2016’s failed coup attempt, Turkey’s Council of Ministers introduced a nationwide state of emergency under article 120 of the Constitution of Turkey, for three months from 1am on July 21, 2016.

Given the type and scope of measures introduced under the state of emergency so far, the situation should have a limited impact on business in Turkey, except obviously for entities which have been deemed to have acted against national interests and shut down.

Intellectual property rights and processes have so far been unaffected by the state of emergency. However, changes to individuals in the judiciary and government bodies may mean delays for ongoing matters.

Similarly, executing criminal raids in Turkey could be delayed due to limited police availability.

State of emergency

A state of emergency is regulated under articles 119, 120 and 121 of the constitution and State of Emergency Law No. 2935 (law 2935).

The phrase “state of emergency” is not specifically defined in the legislation. However, in legal doctrine, it is defined as “the extraordinary administrative procedure announced within the context of definite reasons which enable the temporary suspension of the fundamental rights and freedoms partially or completely, or imposition of financial, property-based or working obligations for citizens”.

Within the scope of a state of emergency, the government has the authority to take various measures including empowering officials to search people, their vehicles or their wares, or to seize those which may be deemed objects or evidence of crime.

Following the publication of law 2935, sanctions have been introduced for judicial and public officials who are deemed to have acted against Turkey’s national security. Specified judicial and public officials have been dismissed by the relevant authorities. Dismissed individuals include members of the Court of Cassation, the Constitutional Court of Turkey, and the Turkish Council of State, as well as members of the armed forces, police officers, and university academics.

Effect on IP rights

At the time of writing, neither law 2935 nor decree laws contain any provisions regarding trademark, patent or industrial design matters. Procedures remain the same for IP rights in Turkey.

However, the state of emergency allows the structure of state organs (including the Turkish Patent Institute) and judicial bodies to be changed more quickly than before. Within the scope of such changes, individual officers may be dismissed.

The courts and police departments are on alert after recent incidents. Some judges were dismissed and others were appointed to different positions. Therefore, rights owners might have problems when planning IP-related raid actions in the immediate future.

"Intellectual property rights and processes have so far been unaffected by the state of emergency."

Even if a raid warrant is obtained, it may not be possible to execute the decision within the required time due to police officer workloads. Despite this, procedures currently remain unchanged for civil actions.

Having said that, the state of emergency empowers the Council of Ministers to easily issue decree laws. Therefore, it is possible that a new decree law could make amendments to existing trademark, patent or industrial design decree laws. 

Given recent developments, no progress has been made with the draft IP law, which was sent to the Turkish parliament for approval in May 2016.

Under Turkish law, a state of emergency can be initiated for up to six months. If the basis for the emergency continues, the Council of Ministers can request the Grand National Assembly to extend the duration for a period of four months.

Işık Özdoğan is a partner at Moroğlu Arseven. She can be contacted at: iozdogan@morogluarseven.com 

Ezgi Baklacı is a partner at Moroğlu Arseven. She can be contacted at: ebaklaci@morogluarseven.com 

Işık Özdoğan, Ezgi Baklacı, Moroğlu Arseven, trademark, patent, industrial design, Court of Cassation, Constitutional Court of Turkey,

WIPR