KÜHEYLAN HUKUK
When a Trademark Warning Comes: Infringement Case, Precautionary Measures and Compensation. Within the framework of SMK Article 29 and Article 149-159, the trademark owner's demands, precautionary measures, calculation of lost profits and the defense opportunities of the business that received the warning. This guide has been updated as of 2026, based on the Industrial Property Law No. 6769, the Law on Intellectual and Artistic Works No. 5846 and the Supreme Court case law.
Most trademark disputes begin with a notary notice. For the party sending the notice, this document is a step that facilitates the proof of bad faith and prepares the ground for the subsequent lawsuit; For the business that receives the warning, the content of the first response determines the limits of the defense if a lawsuit is filed. In this guide, the acts considered as infringement of the trademark right, the determination, suspension, seizure and compensation requests that the right owner may request from the court, the lost profit calculated by three different methods, the conditions of the injunction and the defense tools such as proof of use by the party receiving the notice, previous right, silence and determination of the absence of infringement are explained together with the current Supreme Court decisions.
1. Which uses are considered trademark infringement?
According to Article 29 of the Industrial Property Law (IPC), using a trademark or an indistinguishably similar one without the permission of the trademark owner, selling, distributing, importing or exporting products that are known or should be known to be imitations, keeping them for commercial purposes and expanding licensed rights without permission constitute infringement. The ways of use are listed in Article 7/3 of the Civil Code: placing the sign on the product or packaging, using it in advertising and business documents, using it as a trade name or business name, and using it on the internet in the form of a domain name, keyword or similar form in a way that creates commercial effect are among these.
Protection is limited to goods and services covered by registration and those similar to them; Possibility of confusion between brands is sought (Art.7/2-b). In well-known trademarks, protection extends to different goods and services (Art. 7/2-c). The 11th Civil Chamber of the Supreme Court of Appeals accepts that sale is not a requirement for infringement, and that the presence of the products in a commercial enterprise constitutes a presumption of possession for commercial purposes (11th HD, 15.04.2026, E.2025/4961, K.2026/2062).
2. What Can the Trademark Owner Request from the Court?
SMK article 149 offers the right holder a wide list of demands that complement each other. These claims may be brought together in the same case:
Detection and prevention: Determining that the act is rape and preventing possible rape.
Stopping and removing: Stopping acts of rape and eliminating their consequences.
Seizure and destruction: Seizure of infringing products and machines used exclusively in their production; Deletion of trademarks if necessary or destruction if unavoidable.
Compensation: Compensation for material and moral damage and also reputation compensation in case the reputation of the brand is damaged (Art. 150/2).
Announcement: If there is a justified reason, the announcement of the final decision at the expense of the other party.
3. Compensation: How to Calculate Lost Earnings?
Damage to the right holder includes actual loss and foregone gain. The deprived earnings are calculated by one of three methods, depending on the choice of the beneficiary (SMK article 151/2). The choice must be made on the basis of the evidence; because each method creates a different burden of proof.
Method Rest When is it preferred?
Possible income that would have been earned if the rape had not occurred SMK article 151/2-a If the sales loss of the right holder can be shown with its own records
Net gain of the rapist SMK article 151/2-b If the sales volume of the counterparty can be determined from commercial books
Reasonable license fee SMK article 151/2-c Sales data cannot be accessed or if the brand has a licensing market
The Supreme Court approved the compensation awarded based on the net profit determined by the expert examination of the commercial books of the infringing company. In the concrete file, the financial expert calculated the net gain as 89,057.60 TL by deducting the gross profit from the sales revenue during the rape period and the operating expenses from this (11. HD, 10.12.2024, E.2024/448, K.2024/8857). If one of the first two methods is chosen and the demand arises mainly from the strength of the trademark, the court adds an equitable share (Art. 151/4). Before filing a lawsuit, the right holder may request that the other party's documents be submitted to the court to determine the damage (Art. 150/3).
Continuing the rape until the case is concluded often causes irreparable damage. The right owner may request precautionary measures by proving that the use has occurred in a way that constitutes infringement or that serious and effective preparations have been made for this purpose. Precaution; It may include stopping the acts of infringement, seizing the products wherever they are located, including customs and free zones, and providing a guarantee (SMK article 159).
After the injunction decision taken before the lawsuit is filed, the main lawsuit must be filed within two weeks; Otherwise, the measure is automatically lifted (HMK article 397/1). In a file transferred to the Supreme Court, it is seen that the injunction decision was automatically lifted because the process that started with the request for determination and precaution was not connected to the main case (11. HD, 09.10.2025, E.2025/1123, K. 2025/6088). If there is a risk of losing evidence, the identification of products and sales records with the help of an expert may also be requested.
The intellectual and industrial rights civil court hears the case; The civil court of first instance appointed in places where there is no such court has jurisdiction. Right holder; He can file a lawsuit in his own place of residence, where the act took place or where its effects were observed (SMK art. 156/1, art. 156/3). Cases arising from intellectual property legislation are commercial cases; For this reason, it is a condition for a lawsuit to apply to a mediator before filing a lawsuit for compensation claims that involve the payment of a certain amount of money (TTK Art. 4/1-d, Art. 5/A). Detection, stopping and seizure requests are not subject to this condition. In practice, in cases involving a claim for compensation, adding the mediation report to the petition eliminates the risk of procedural rejection.
Claims for compensation are subject to the statute of limitations provisions of the Turkish Code of Obligations (SMK article 157). Claims based on torts become statute-barred within two years from the date of learning of the damage and the person liable for compensation, and in any case within ten years from the act (TCO Art. 72/1). In cases of ongoing rape, the statute of limitations is re-evaluated as long as the act continues.
6. What should the business that receives the warning do?
The response to the notice will be entered into the file as a party declaration in the lawsuit that may be filed later. Therefore, before the answer, the following questions should be answered: Is the other party's trademark really registered, which classes does it cover and is there a possibility of confusion with the sign used? Is the business's own use or registration older? If the other party's trademark has been registered for more than five years, is it used?
Defense of use: In an infringement case based on a trademark that has been registered for five years, the plaintiff may be required to prove that he has seriously used his trademark in the last five years (SMK art. 29/2, art. 19/2). An unused trademark cannot be the basis for an infringement claim.
Prior-dated right: If the defendant has a right with a prior priority or filing date, the infringement claim collapses. On the other hand, its own registration with a later date cannot be claimed as a defense against the previous right owner (Art. 155).
Remaining silent: If the trademark owner has remained silent for five years even though he knew that the subsequent trademark was being used, he cannot request invalidation unless there is bad faith (Article 25/6). Known long-term use strengthens the defense of abuse of right in a rape case.
Determining that there is no infringement: The business that wants to end the uncertainty may request an opinion from the right holder; If no response is received within one month or if the response is not accepted, the person may file a lawsuit to determine that his actions do not constitute rape (Art. 154).
If it is concluded that the notice is justified, immediately stopping the use, separating the stocks and basing the compensation negotiation on this data reduces the risk of a lawsuit that grows with litigation costs and attorney fees.
A cafe with two branches in Istanbul has been using the name "Kumbara" on signs and social media since 2021. In 2026, a notice came from a company that registered the same phrase in the 43rd class in 2018, requesting that the use be stopped within seven days and 500,000 TL compensation be paid. The cafe owner states that he has not come across any business of the company that sent the warning letter operating under that name.
Since the registration is dated 2018, the five-year usage requirement has expired. If a lawsuit is filed, the cafe may request proof that the trademark has been used seriously in Türkiye in the last five years (SMK article 29/2); If it cannot be proven, the rape allegation is rejected. In parallel, the cancellation of the trademark due to non-use can be requested from TÜRKPATENT (Art. 26) and the cafe can apply on its own behalf. In the response to the notice, it should be stated that the claim for compensation is unfounded and proof of use will be awaited, but unnecessary explanations regarding the use of the business should be avoided. If the other party's brand is actually used, the strategy should be based on the transition period to name change and a reasonable settlement fee.
Can a lawsuit be filed directly without sending a notice?
Yes. Warning is not a requirement for a lawsuit. However, proof that the other party was informed of the imitation is effective in the files discussing the situations in which he should have known and in the amount of compensation.
Can moral compensation be requested?
Yes. SMK article 149/1-ç provides for compensation for material and moral damages. Court; It determines the amount by taking into account the duration, nature of the violation and the awareness of the brand. The competitor uses my brand as a keyword in Google ads. Is this rape? Using the sign as a keyword in a way that creates commercial effect is within the scope of infringement unless the user has a legitimate connection (SMK article 7/3-d). It is also evaluated whether the advertising text misleads the consumer into thinking that there is an economic connection with the brand owner.
Can a criminal complaint and a civil lawsuit be carried out together?
Yes. Criminal investigation can produce rapid results in terms of seizure and evidence collection; Civil litigation is necessary for compensation and a permanent ban. If a compromise is reached in the criminal file, the settlement amount should be determined accordingly, since no lawsuit for compensation can be filed for the same act.
The word in my trade name is someone else's registered trademark. Do I need to change my title?
Using the sign as a trade name is also considered as a violation (SMK article 7/3-e). The registration date of the title should be compared with the application date of the trademark; If the title is older, the previous defense of rights comes to the fore.
Responding to the warning in detail and carelessly: Every written statement enters the case file as evidence; Information such as the start date of use may be interpreted negatively.
Overlooking the proof of use defense: In a case based on a trademark that is more than five years old, this defense can drop the claim entirely.
Choosing the compensation method without looking at the evidence: The net income method depends on the books of the other party, and the probable income method depends on the beneficiary's own records.
Delaying the main lawsuit after the measure: The measure taken before the lawsuit is automatically lifted if a lawsuit is not filed within two weeks.
Skipping mediation: Failure to resort to mediation in a case involving a claim for compensation will result in the procedural rejection of this request.
In trademark infringement disputes, the outcome is often determined by the first moves: securing the evidence for the right owner with precautions and detection and the accurate choice of the compensation method; For the business that received a warning, proof of use, early determination of previous rights and silence defenses. Pre-litigation negotiation becomes meaningful after these evaluations are made.
Küheylan Law Firm handles trademark disputes with a strategy compatible with the commercial objectives of its client, from the preparation and response of notices to requests for evidence and injunctions, from mediation negotiations to infringement, compensation and invalidity cases in intellectual and industrial property rights courts.
Important Legal Notice: This guide has been prepared by Küheylan Law Firm for general information purposes and does not constitute a legal opinion. Since legislation and judicial precedents may vary, a file-specific legal evaluation must be made before deciding on concrete disputes. Person names and numbers in the case studies are representative.
KÜHEYLAN HUKUK