Relationship between Geographical Indications and Trade Marks under Turkish Law

Abstract

While geographical indications show geographical origin, trade marks show commercial origin. Therefore, it is possible to say that both geographical indications and trade marks have distinctive character. Indeed, when an application is filed to register a geographical indication as a trade mark, an important question is whether the sign is distinctive enough. In such cases, the distinctive character of these commercial and geographical 'signs' can overlap and intersect with each other. In this article, the intersection and relationship between geographical indications and trade marks will be evaluated by considering two different scenarios. In the first one, the trade mark application precedes the registration of the geographical indication, while in the second the application for the geographical indication is filed before the conflicting trade mark. The analysis is carried out by taking into account various provisions of the Turkish Industrial Property Code (IPC), the judicial practice of the Turkish Court of Cassation and international regulations. In this context, the relationship between several absolute grounds for refusal in such a situation and which of these provisions is the most applicable will be examined. In particular, an attempt will be made to explain the role of the absolute ground for refusal regulated in the new Turkish Industrial Property Code for the first time, namely that signs containing or consisting of a geographical indication cannot be registered as a trade mark (Art. 5.1(i)).