Case Analysis: 11. HD 2025/253
Executive Summary
A recent 2025 decision by the Turkish Court of Cassation (11th Civil Chamber) has significantly narrowed the scope of Cumulative Protection. The Court ruled that regarding registered trademarks, the Industrial Property Code (SMK) acts as the lex specialis (special law), effectively overriding the general Unfair Competition provisions of the Turkish Commercial Code (TTK). This signals a shift in how infringement cases should be pleaded in Turkey.
1. Case Background
The Dispute: A long-standing restaurant owner (“… Ocakbaşı”) sued a competitor for using a similar name, claiming both Trademark Infringement and Unfair Competition.
The Lower Court’s View: Ruled in favor of the plaintiff on both grounds, applying “Cumulative Protection”—a doctrine allowing simultaneous claims under IP law and Commercial law for the same act.
The Issue: Does a trademark violation automatically trigger Unfair Competition laws, or is the IP Code sufficient on its own?
2. The Supreme Court's Ruling (The Shift)
The 11th Civil Chamber overturned the “Cumulative Protection” approach. Their reasoning:
Special vs. General: The Industrial Property Code (SMK No. 6769) is a specialized law designed to handle all aspects of trademark infringement.
Legislative Intent: The current Commercial Code (TTK) intentionally removed specific references to “trademarks” in its Unfair Competition section to avoid redundancy with the IP Code.
The Verdict: If a right is registered (like a trademark), you must sue under the SMK. You cannot “double dip” by adding a general Unfair Competition claim unless there is a specific act separate from the IP infringement itself.
3. The Dissenting Opinion (The "Nuance")
It is crucial to note that this decision was not unanimous. The dissenting judge argued:
Different Purposes: IP Law protects the owner; Unfair Competition law protects the market ecosystem (competitors and consumers).
Risk: By removing Unfair Competition claims, consumers and professional organizations (who can sue under Unfair Competition but not under IP law) might lose their standing to challenge deceptive practices.
4. Strategic Implications for International Counsel
Why does this matter for a foreign brand entering Turkey via MARQORA?
Precision in Pleading: When enforcing rights in Turkey, “kitchen sink” pleadings (claiming every possible violation) are now risky. Claims must be grounded specifically in the SMK.
Damages Calculation: The legal basis affects how damages are calculated. Relying solely on the SMK requires strictly meeting the statutory definitions of infringement.
The “Registration First” Imperative: Since the Court is prioritizing the SMK (which protects registered rights), relying on unregistered rights (via Unfair Competition) is becoming a harder path. Early registration is more vital than ever.
