In today’s global business environment, the value and recognition of brands are increasing.
This increasing importance requires effective protection of trademark rights and resolution of
disputes. Trademark right provides the identity of a business and distinguishes its products
from others and therefore becomes a strategic asset for businesses. However, in this
environment where competition is intense, the existence of effective mechanisms for the
protection of trademark rights and resolution of disputes is of great importance. In this article,
arbitration and mediation methods, which are one of the alternative resolution methods used
for the protection of trademark rights, will be examined and the advantages of these methods
in the resolution of trademark disputes will be discussed. In addition, it will be discussed how
regulations such as the Turkish Commercial Code and the Law on Mediation in Civil Disputes
play a role in the resolution of disputes related to trademark rights. In this way, current
approaches to the protection of trademark rights and resolution of disputes and how the
legislation come together will be discussed from a broader perspective.
A. Arbitration Method
Protection of trademark rights is gaining importance day by day. Arbitration, which is one of
the alternative solution methods for the protection of the trademark right, serves the need of
experts required for the resolution of the dispute. Therefore, we can say that it is more
functional than the courts in this regard. On the other hand, arbitration may be preferred due
to its features such as being less costly and saving time.
World Intellectual Property Organization (“WIPO”) Arbitration and Mediation Center was
established due to the increasing need for trademark protection and the need for specialists for
effective protection. The fact that most of the applications coming to the WIPO Arbitration
and Mediation Center are related to intellectual property rights is a concrete reflection of the
functionality of this system.
The parties may freely dispose of the trademark right and may prefer to resort to arbitration or
mediation, which is one of the alternative dispute resolutions, in the resolution of disputes that
may arise within this scope. The reasons such as litigation taking more time and cost make it
reasonable to use arbitration and mediation. In addition, the purpose of maintaining their
relations in order to protect the interests of commercial persons causes them to prefer to settle
a dispute through a mediator in case of a dispute.
Disputes arising from the trademark right mostly arise from the contract. Accordingly, the
parties should act by taking into account the future disputes during the preparation of the
contract. Since trademark law is a field with very technical information, it is very important
that the people who will prepare the contract are experts in this subject.
B. Mediation Method
According to article 4/1-d of the Turkish Commercial Code (“TTK”), disputes arising from
the issues stipulated in the legislation on intellectual property law are commercial disputes.
Trademark law is also included in the scope of intellectual property legislation mentioned
here. On the other hand, since the dispute must be related to the commercial enterprise of at
least one party in order for a dispute to be considered as a commercial dispute, not every
lawsuit filed under the intellectual property law can be considered as a commercial lawsuit.
For instance, a copyright dispute between two authors cannot be considered a commercial
lawsuit, while a dispute between the author and the publisher can be considered a commercial
lawsuit. Because in this assumption, the publishing house, which is one of the parties, is in the
position of a merchant.
With the provision of article 5 of the TTK adopted in 2018, it is stipulated as a condition to
apply to a mediator before filing a commercial lawsuit for receivables and compensation
claims, the subject of which is the payment of a certain amount of money. We have mentioned
above that some lawsuits to be filed within the scope of trademark law are also considered
commercial lawsuits and what they are. Therefore, in trademark disputes related to the
commercial enterprise of one of the parties, if the subject constitutes a claim for receivables or
compensation exceeding a certain amount of money, it is obligatory to apply to a mediator.
Otherwise, litigation cannot be pursued.
After the implementation of the said regulation, the workload of the courts in this
regard decreased, and most of the disputes were resolved through mediation.
Therefore, we can say that the mandatory mediation requirement is quite beneficial.
As stated in Article 17/A of the Law on Mediation in Civil Disputes (“HUAK”), an
annotation of enforceability must be submitted by the commercial court of first
instance in order for the settlement agreement signed at the end of the mediation
process to be fulfilled. Therefore, it is of great importance whether the dispute is
suitable for mediation before resorting to non-compulsory mediation. Otherwise, there
will be a waste of time and expense, and the mentioned settlement agreement
document may not be valid. In Article 1 of HUAK, it is stated that “it is applied in the
resolution of private law disputes arising from works and transactions on which the
parties can freely dispose”. According to the relevant regulation, disputes with foreign
elements are also included. Finally, it should not be forgotten that conditional
mediation should also be reviewed in terms of eligibility for mediation. These factors
are also taken into account in the mediation process to be applied within the scope of
trademark dispute. For instance, in case of rejection of the trademark registration
application due to the existence of absolute rejection reasons, a mediator cannot be
applied. Because, the parties cannot freely dispose of the absolute grounds of
refusal. On the other hand, it is possible for the parties to apply to a mediator
regarding the relative grounds of refusal.
C. Conclusion
Arbitration and mediation methods are preferred because they are less costly and time-saving
than court processes. The desire of commercial enterprises to maintain their relations in order
to protect their interests also encourages the preference of reconciliation such as mediation. In
addition, the fact that trademark law is a technical field reveals the necessity of experts from
contract preparation to dispute resolution.
Regulations such as the Turkish Commercial Code and the Law on Mediation in Civil
Disputes encourage the resolution of disputes regarding trademark rights through mediation.
The mandatory mediation requirement, which was adopted in 2018, reduced the court burden
and enabled disputes to be resolved effectively.
As a result, the use of arbitration and mediation methods in the resolution of disputes related
to trademark rights will both serve the purpose of protecting the interests of the parties and
contribute to the effective and efficient functioning of the law. The success of these solution
methods will be further enhanced by the cooperation of the parties and the adoption of an
approach based on expertise.
References
- 1. Eminoğlu, C., Korkmaz, C., Marka Hakkına Tecavüzden Doğan Uyuşmazlıkların
Arabuluculuğa Elverişliliği, Erzincan Binali Yıldırım University Journal of Faculty of
Law, Vol: 26, Issue: 1, Year 2022. - Karasu, R. (2019). Fikri Mülkiyet Uyuşmazlıklarında Zorunlu Arabuluculuk Dönemi
Başladı, Fikri Mülkiyet. https://fikrimulkiyet.com/fikri-mulkiyet-uyusmazliklarinda-
zorunlu-arabuluculuk-donemi-basladi/ - Yördem, Y. Marka Hukukunda Arabuluculuk ve Tahkimin Uygulama Alanı, Dicle
University Vocational School of Justice Journal of Dicle Justice, Volume:1, Issue: 1,
Year 2017.
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