CUSTOMS REGULATIONS REGARDING THE PROTECTION OF INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS

Yucel BAY
Import Coordinator

“Intellectual Property”, also known as copyrights or intellectual rights; literature, art, music, architecture, etc. These are the rights that can be acquired over works such as. “Industrial Property”, with its general definition, refers to the first implementers of inventions, innovations, new designs and original works in industry and agriculture; It is an intangible right that allows the marks on the goods produced and sold in the field of trade to distinguish the producer or seller to be registered in the name of their owners, and thus the first adopters to have the right to produce and sell the product for a certain period of time. Industrial Property rights include patents, utility models, trademarks and designs. Intellectual and Industrial Property Rights; These are the rights that protect the commercial rights of the work, trademark and inventor.

Intellectual and industrial property rights in Turkey, "Law on Intellectual and Artistic Works" no. 5846, "Law on the Protection of Integrated Circuit Topographies" no. 5147, "Law on the Protection of Breeders' Rights on New Plant Varieties" no. 5042, "Protection of Patent Rights" no. 551. It is protected by the Decree Law No. 554, the Decree Law No. 554 on the Protection of Industrial Designs, the Decree Law No. 555 on the Protection of Geographical Indications, and the Decree Law No. 556 on the Protection of Trademarks.

The first provision regarding the protection of intellectual and industrial property rights within the framework of the harmonization of customs legislation with the European Union acquis was put into force with Article 57 of the Customs Law No. 4458, which came into force in 2000. Articles 100 to 111 of the new Customs Regulation, which came into force in the same year, included detailed regulations on the same subject.

Customs administrations take action in accordance with the provisions of Articles 102 to 104 regarding goods that are subject to a customs-approved transaction or use, including goods that change vehicles in the Turkish Customs Territory, and that are suspected of violating intellectual and industrial rights or that violate these rights.

The consent of the right owner of the goods that have a trademark with the permission of the right owner, are protected by patent or utility model rights, copyright or related rights, design rights, integrated circuit topography right, breeder's right of new plant varieties or geographical indication right and are produced with the permission of the right owner. The goods in question are excluded from the scope of the provisions of this article if they are subject to one of the conditions specified in the first paragraph, or if they are produced under different conditions than those approved by the right holder, or if they are protected under other conditions by an intellectual and industrial right other than those specified in the first paragraph of Article 107.

Regarding the rights that need to be protected according to the intellectual and industrial rights legislation, the detention of goods that violate the rights of the right holder or the suspension of customs procedures are carried out by the customs administrations upon the request of the right owner or his representative. The suspension or detention decision is notified to the right holder or his representative, the declarant or the persons specified in Article 37 of the Customs Law.

In cases where a request has not yet been made to the customs administration and there is clear evidence that the goods in question violate intellectual and industrial property rights, the goods may be detained ex officio by the customs administrations for three business days or the customs procedures of the goods may be suspended, in order to ensure that the rightful owner can make a valid application.

Acceptance of the application made to the customs administration on the grounds that intellectual and industrial rights have been violated does not entitle the right holder to compensation on the grounds that the goods in question were left without proper inspection by the customs administration or that no precautions were taken to detain the goods. Within the scope of combating goods that violate intellectual and industrial rights, the customs administration and its officials cannot be held responsible for any damage suffered by the relevant persons due to the customs administration acting upon application or ex officio.

If the right owner does not take a precautionary measure within three business days for perishable goods and within ten business days for other goods, from the notification of the suspension or detention decision taken by the customs administration to the right owner, the goods will be processed in accordance with the provisions of the customs regime requested by the declarant. In case of a justified excuse, upon the request of the right holder, the customs administration may grant an additional period of up to ten business days.

Goods whose customs procedures have been suspended or detained by the customs administration are destroyed or liquidated by changing their essential characteristics in accordance with the decision taken by the competent court.

Personal belongings for passengers' own use and souvenirs that are not of a commercial nature and are within the limits of customs duty exemption are not included in the scope of these regulations. Likewise, if the goods protected by the rights that must be protected according to the intellectual and industrial rights legislation and produced with the permission of the right holder are subjected to a customs procedure without the consent of the right holder, or are produced under different conditions than those approved by the right holder, or carry a brand under other conditions, the goods in question are also are excluded from the scope.

The customs administration may allow the destruction of goods whose customs procedures have been suspended or detained by the customs administration under customs control within the scope of facilitated destruction, without the need for the court to determine that they violate intellectual and industrial rights.

In order to make an application in accordance with Article 103 of the Regulation, for the goods that are ex officio detained or whose customs procedures have been suspended by the customs administration in accordance with subparagraph (b) of the first paragraph of Article 57 of the Law, the right holder; In addition, the declarant or the person in possession of the goods is notified within the first business day following the detention or suspension.

The request to detain goods that violate intellectual and industrial rights or to suspend customs procedures is made by filling out the "Application Form for Suspension of Customs Procedures for Goods Violating Intellectual and Industrial Rights" electronically and applying to the customs administration in Annex 13 of the Customs Regulation.

In applications, it is mandatory to record the full and detailed technical description of the goods, any information that can be given by the right holder regarding the type and form of forgery, and the name and address of the contact person determined by the right holder. A document proving that the applicant has the right to the goods in question and that the right has been registered in Turkey must be attached to the applications.

In the application petition, the right holder must specify exactly the length of time for which he wants the customs administration to take action. However, this period cannot exceed one year. At the beginning of the period, the date on which the application petition is registered with the customs administration is taken as basis. Petitions that do not contain any of the mandatory information requested in the application petitions will not be processed.

The application is reviewed within thirty business days from the date of application and the result is notified to the applicant. If the application is accepted, the customs administration clearly states how long the decision in question is valid. This period can be extended upon application of the right holder.

If the application is not accepted by the customs administration, the decision in question is notified to the right holder, stating the reasons and providing an opportunity for objection pursuant to Article 242 of the Law.

The beneficiary cannot be requested to cover the administrative costs incurred during the processing of the application. However, the analysis and expertise fees and overtime fees carried out for the purpose of determining that the goods violate the provisions of the legislation on the protection of intellectual and industrial rights are covered by the rights owner or his representative.

In the event that the procedures specified in Article 105 of the Customs Regulation cannot be continued by the right holder's own discretion or negligence, or if it is determined that the goods in question do not violate the intellectual and industrial rights, the electronic notification accepts responsibility towards the persons who carry out the customs procedures in accordance with the first paragraph of Article 101. The declaration is also added to the application. In this declaration, the rightful owner states that he undertakes all expenses related to keeping the goods specified in Articles 104 and 105 under customs supervision.

In cases where the right guaranteed in accordance with the legislation on the protection of intellectual and industrial rights on goods expires or expires, the situation must be notified to the customs administration by the right owner. In addition, the beneficiary is held responsible for any incorrect or incomplete information given to the customs administration during the application or for any incorrect practices that may arise due to the failure to update existing data.

Upon the application of the right holder, if the goods subject to customs procedures meet the definition of goods that violate intellectual and industrial rights, the customs administration stops the customs procedures of the goods and detains the goods.

The customs administration notifies the rightful owner or his representative and the possessor of the goods within the first business day following the detention of the goods or the suspension of customs procedures. Excluding information of a confidential nature and within the scope of professional secrets and information of a commercial and industrial secret nature, information such as the name and address information of the recipient, sender, declarant and possessor of the goods, as well as the country of origin and source of the goods in question, are intended to be used in applying to the competent judicial authority. It is given to the rightful owner who requests it.

The customs administration allows the persons involved in any of the customs procedures and the applicant to inspect the goods whose customs procedures have been suspended or detained, and upon the request of the right holder, may take samples from the goods in question during the inspection of the goods, only for analysis and delivery to the right owner in order to facilitate subsequent procedures. Samples taken in accordance with the conditions are sent back to the customs administration after the analysis is completed and before the customs procedures of the goods are completed. All analyzes of the samples are carried out under the responsibility of the rights holder.

Goods suspected by the customs administration of violating an intellectual or industrial right during customs procedures can be destroyed within the framework of the procedures and principles specified in this article, without filing a lawsuit in court or waiting for a court decision, pursuant to Article 53 of the Law.

The destruction process is carried out within ten business days following the notification by the customs administration that the customs procedures of the goods have been suspended or detained, and within three business days for perishable goods, a petition is submitted by the right owner, detailing the elements that violate intellectual and industrial rights, and the goods are sent to customs for destruction. It is carried out if a consent given by the owner of the goods or the declarant authorized by the owner of the goods, stating that the goods have been abandoned, is submitted to the customs administration and there is no objection by the owner of the goods or the declarant within this period. The destruction process is carried out under the supervision of the customs administration and the responsibility of the right holder. All costs related to destruction are collected from the rightful owner. During destruction, a sample is taken from the goods by the customs administration.

Upon the application of the right holder pursuant to Article 104 of the Customs Regulation, the decision taken by the customs administration regarding the suspension or detention of the customs procedures of the goods shall be made effective upon the notification to be made to the right owner via documentation or from the e-mail address of the relevant administration, or in respect of the goods whose customs procedures have been suspended or detained ex officio. Within ten business days from the date of application of the right holder, the right holder; It is necessary to file a lawsuit in the competent court and obtain an interim injunction decision, or to obtain an interim injunction decision from a court other than the competent court, and to file a lawsuit in the competent court within ten days from the date of receipt of the interim injunction decision, and a document showing this situation must be submitted to the customs administration.

Goods that have been seized or whose customs procedures have been stopped due to suspicion of violating a design right, patent, additional protection certificate or plant diversity right, must have notified the customs administration that took the decision to suspend that the legal procedure has been initiated to ensure that the goods in question have violated the intellectual property right. If the judicial authorities have not issued an interim injunction decision within ten business days and all customs procedures of the goods have been completed, the goods can be delivered to the declarant, owner, importer, carrier or holder of the goods against a guarantee.

When transactions regarding goods that violate intellectual property rights are initiated by a person other than the rightful owner, the guarantee received is dissolved if the person does not initiate the legal process regarding the dispute within twenty business days from the date of receipt of the notification that the customs procedures of the goods have been suspended.

Goods whose transactions are stopped or detained on the grounds that they violate intellectual and industrial rights are not allowed to enter the Turkish Customs Territory, enter into free circulation, leave the Turkish Customs Territory, be exported, re-exported, subjected to conditional exemption regulations, or placed in the free zone.

In cases where the competent court decides that the goods in question are counterfeit or pirated, and a decision is made to destroy the goods, the goods are destroyed at the expense of the owner of the goods. If it is decided to deliver the goods to its owner after the properties of the goods have been changed, the qualities of the goods are changed in such a way that they cannot return to their original state in any way. Removing brands and labels is not considered sufficient to change the qualities of the goods. Expenses related to these transactions are covered by the owner of the goods. If a customs declaration was made regarding the goods before their characteristics were changed, the declaration in question will be cancelled. Requests to re-export the goods without changing their qualities are rejected. If it is decided to confiscate fake or pirated goods, their characteristics are changed before the goods are subject to liquidation provisions.

SOURCE

Article 57 of the Customs Law No. 4458 dated 27/10/1999

Articles 100 to 111 of the Customs Regulation published in the Official Gazette dated 07/10/2009 and numbered 27369

Customs General Communiqué (Intellectual and Industrial Property Rights) (Serial No: 1)

Ministry of Commerce Web Portal

Marmara University Innovation and Technology Transfer Application and Research Center (MITTO) Web Portal

QUESTIONS AND ANSWERS

Question 1. What are Intellectual and Industrial Property Rights?

Answer: “Intellectual Property”, also referred to as copyrights or intellectual rights, refers to all material and moral rights and neighboring rights that may be owned on a work. Intellectual property is an intellectual product owned by a person or organization; that person or organization may subsequently choose to share it freely or control its use in certain ways.

 "Industrial Property", with its general definition, on behalf of the first implementers of inventions, innovations, new designs and original works in industry and agriculture; It is an intangible right that allows the marks on the goods produced and sold in the field of trade to distinguish the producer or seller to be registered in the name of their owners, and thus the first adopters to have the right to produce and sell the product for a certain period of time.

Question 2. Brand/Patent etc. What procedure should a person who requests customs protection regarding intellectual property rights follow?

Answer: In case of a request to detain goods that violate intellectual and industrial rights or to suspend customs procedures, the right holder can submit the "Application Form for Suspension of Customs Procedures for Goods Infringing Intellectual and Industrial Rights" in Annex 13 of the Customs Regulation electronically. You must fill it out and apply to the customs administration.

Question 3. Is there an application guide that can be used when making e-applications to customs authorities regarding intellectual and industrial property rights?

Answer: Detailed information on the points to be taken into consideration when using the program that allows the Application for the Customs Administration to Take Action Regarding the Violation of Intellectual and Industrial Rights to be made online with electronic signature is available on the Ministry of Commerce web portal. This information can be obtained by following the "Home Page/E-Transactions/Applications/E-Application Guide for the Protection of Intellectual and Industrial Rights at Customs".

Question 4. What are the transactions that will not be allowed for goods that violate Intellectual and Industrial Property rights?

Answer: Goods whose transactions are stopped or detained on the grounds that they violate intellectual and industrial rights are not allowed to enter the Turkish Customs Territory, enter into free circulation, leave the Turkish Customs Territory, be exported, re-exported, subjected to conditional exemption regulations, or placed in the free zone.

Question 5. What are the procedures to be taken after this decision for goods whose customs procedures have been stopped or detained as a result of Intellectual and Industrial Property Rights violation?

Answer: Based on the application of the right holder pursuant to Article 104 of the Customs Regulation, the decision taken by the customs administration regarding the suspension or detention of the customs procedures of the goods shall be made effective upon the notification to be made to the right owner through documentation or from the e-mail address of the relevant administration, or ex officio regarding the goods whose customs procedures have been stopped or detained. Within ten business days from the date of application of the right holder, the right holder; It is necessary to file a lawsuit in the competent court and obtain an interim injunction decision, or to obtain an interim injunction decision from a court other than the competent court, and to file a lawsuit in the competent court within ten days from the date of receipt of the interim injunction decision, and a document showing this situation must be submitted to the customs administration.