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Frequently Asked Questions: Edited October 2005
What is the legal basis for the protection of Integrated Circuit Topographies in Turkey? The current regulation is based on the Act no. 5147 in force as from April 30, 2004 and on its Implementing Regulation published in the Official Gazette no. 25686 of December 30, 2004 pertaining to the protection of the integrated circuit topographies in Turkey. The object of said Act is to protect the integrated circuit topographies with the aim to ensure a situation of competition and industrial development in this field. Who is entitled to obtain protection for integrated circuit topographies? The following persons are entitled to benefit from the protection of the integrated topographies according to Article 3 of the Act no. 5147:
What is the principle of reciprocity for protection? According to Article 6 parag. 3 of the Implementing Regulation, where foreign countries accept registration or announce in writing that they shall register the integrated circuit topographies of the Turkish Republic citizens, Turkey will reciprocate protection. What does originality mean? Protection starts as from the date on which the integrated circuit topography is put for the first time, commercially to the market at home country or abroad by the right holder or by a third party under his authorization, provided that the application for the registration is filed in Turkey within two years as from the first commercial launch. Where there is no commercial use, and therefore date of first use, the protection starts as from the date of application for the registration of the integrated circuit topography in Turkey. When does the protection start? Protection starts as from the date on which the integrated circuit topography is put for the first time, commercially to the market at home country or abroad by the right holder or by a third party under his authorization, provided that the application for the registration is filed in Turkey within two years as from the first commercial launch. Where there is no commercial use, and therefore date of first use, the protection starts as from the date of application for the registration of the integrated circuit topography in Turkey. What is the duration of the protection? The term of protection is ten years. In case the integrated circuit topography is not used for commercial purposes and no application for registration has been filed within fifteen years as from the date of its creation, no protection can be claimed after this period unless a situation of secrecy is justified (Article 6 parag. 3 of the Act). The renewal of the protection is not possible and after ten years the subject matter of the right becomes public property. Who can claim protection? The protection right of an integrated circuit topography belongs to its creator or to his legal successor(s) as provided in Article 7 of the Act. In the presence of more than one creator, the joint ownership is valid. In employment relation, the protection right of an integrated circuit topography created by an officer, servant and workers during the performance of their duties belongs to the employers unless there is an agreement to the contrary, in return of which the employer pays a fee. Failure to reach agreement on the amount of the fee, the amount to be paid shall be determined by the court. What is the scope of the protection? Article 11 of the Act provides that the right holder on an integrated circuit topography shall have exclusive rights for preventing and stopping the following acts that occur without and beyond his consent:
What is the principle of personal use exception?
Article 12 of the Act (please refer to the following link) provides that some acts can be done freely without necessitating the authorization of the right holder. These acts remaining outside of the scope of protection concern in summary personal use exception. The reproduction of the integrated circuit topography without the authorization of the right holder for non-commercial purposes or solely with the purpose of evaluation, analysis, research or training does not constitute infringement.
Which documentation/information is required for filing an application?
The application for the registration of the integrated circuit topography shall be filed before the Turkish Patent Institute/TPI (Article 13) and the following information and documents be submitted according to Article 14 of the Act and to Article 8 of the Implementing Regulation (please refer to the following links):
According to Article 15 of the Act, where the application does not comply with Article 14 of the Act and Article 8 of the Implementing Regulation the outstanding points/elements shall be completed within two months as from the TPI’s notification to this effect to the applicant. If the documents listed in Article 15, namely the application petition, information regarding the identity of the applicant and copies or drawings of the integrated circuit topographies are filed with the TPI on the date of the application, the application is considered to have been filed on the date of receipt and entry of same in the records of the TPI. Does a register exist? The applications of integrated circuit topographies are recorded on the Register of Integrated Circuit Topographies and then published on the Bulletin of Patents and the registration certificate issued by the TPI is sent to the application or its attorney. Who is authorized to proceed with filing/registration before the TPI?
Article 23 (please refer to the following link) paragraphs 1 and 3 provide that applications in the name of the applicants having their domicile abroad are to be filed and represented by chartered patent attorneys.
Which are the provisions common with the other acts for the protection of industrial property? A common characteristic of all the Decree-Laws and Acts enacted in Turkey since 1995 in matter of Industrial Property including this recent Act on “the Protection of the Integrated Circuit Topographies” is that they are similar in their structures and that their provisions pertaining to: - litigation, - compensation, - competent courts, -infringement, - evidence, - establishment of experts’ opinion through the court as determination of evidence of infringement or to serve as a declaration of non-infringement/similarity, - injunctive relief upon court order, -procedural law, - withholding of infringing goods at the customs under the suspension of release procedure are similar, not to say identical, to a large extent. Accordingly, with this new Act, Turkey’s fully integrated and coherent body of industrial property legislation is extended to provide protection for the integrated circuit layouts- designs- (topographies). Is it possible to lodge an objection against the decision of the TPI? According to Article 30 of the Act No. 5147, those persons who are damaged/suffer from the Administrative decisions, do have the right of objecting before the Higher Council of Examination and Evaluation of the TPI against the said administrative decisions within 2 months from the date of notification of the decision. The decisions of the Higher Council can be appealed before the (Specialized) Ankara Court of Intellectual and Industrial Property Rights within 60 days as from their notification to the right holder and further before the Supreme Court. Under parallel provisions, the Act no. 5147 April 30, 2004 rule that in all court actions instituted in accordance thereof and against all decisions of the TPI in implementing them, the competent courts shall be the specialized courts to be established by the Ministry of Justice. According to Article 31 parag. 2 the (Specialized) Ankara Court of Intellectual and Industrial Property Rights is competent for all actions to be instituted versus TPI by third persons negatively affected or having suffered damage by the decisions of the TPI on the basis of the new Act. Who can institute the nullity action?
The new Act no. 5147 provides the cases of nullity and termination of rights under its section VI Articles 19 to 23 (please refer to the following link).
According to the 1st paragraph of Article 19 the consumer societies, the bodies, namely Chamber of Commerce and Industry, Chamber of Commerce, Chamber of Industry, Chamber of Shipping, Commodity Exchange, the Union of Chambers and Commodity Exchange of Turkey subject to the law no. 5590 for the Union of Chambers and Commodity Exchange of Turkey enacted on 8.3.1950 and Tradesman and Artisans Association subject to the Law no. 507 for Tradesman and Artisans Association enacted on 17.7.1964 as well as other interested parties are entitled to demand the nullity of the integrated circuit from the competent Court. Article 20 parag. 1 rules that the Court’s decision of nullity shall have retroactive effects. What is the scope of an infringement action? The new Act no. 5147 provides under Articles 24 and 11, parallel provisions to ones existing in Trademark, Patent and Industrial Design Acts in that infringement involves, the unauthorized, production, sale, offer for sale, distribution and importation for commercial purposes of integrated circuits incorporating, wholly or partly, the Chip topography under protection pursuant to said Act, as well as the products containing such infringing integrated circuits. Which remedies can be claimed in the infringement action?
The right holder, within the context of an infringement action may claim that the infringement be stopped, the counterfeit goods and their production tools/instruments/means be seized and, where necessary for stopping the infringement, be destroyed and may further claim for compensation of moral and material damages suffered because of the infringement and for the publication in newspapers of the favorable court decision (Article 26 of the Act, please refer to the following link).
It is possible to request an action in declaration of non-infringement and in determination of evidence by the applicant? According to Article 26 parag. 1 (a) and (b) in case of infringement; the right holder is also entitled to request from the Court, establishment of an Experts’ Report through the Court to serve as determination of evidence as to the existence of a situation of infringement or as a declaration of non-infringement/non-similarity. Is it possible to request an action in declaration of non-infringement and in determination of evidence by the applicant? According to Article 26 parag. 1 (a) and (b) in case of infringement; the right holder is also entitled to request from the Court, establishment of an Experts’ Report through the Court to serve as determination of evidence as to the existence of a situation of infringement or as a declaration of non-infringement/non-similarity. Is it possible to request injunctive relief and border measures? The new Act no. 5147 has parallel provisions structured almost identically to the earlier series of Decree-Laws on industrial property in the matter of injunctive relief upon Court Order and withholding of infringing goods at the customs, the so-called Border Measures. The new Act no. 5147 is also in coherence with the Customs Act No. 4458 to permit, upon complaint, the seizure/withholding, by the customs, of goods infringing intellectual and/or industrial property rights, under protection in Turkey. The withholding is lifted and the customs formalities proceed further unless a court action for infringement is duly instituted or an interlocutory injunction is ordered by the court within 10 days from the date of the withholding by the customs. What are the conditions for the compulsory license?
The conditions of the compulsory license are detailed in Articles 37 and 38 of the Act (please refer to the following link).
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