Complaint to the E-Commerce Platforms in Case of Violation of IP Rights
The Regulation on Electronic Commerce Intermediary Service Providers and Electronic Commerce Service Providers (“Regulation”) was published in the Official Gazette on 29.12.2022. Within the scope of this Regulation, it is aimed to determine the procedures and principles required to establish an effective and fair competition environment and to ensure the development of electronic commerce.
One of the important amendments of the Regulation is the section that regulates “Violation of Intellectual and Industrial Property Rights”. In this section, the issues of “Complaint application for violation of intellectual and industrial property rights”, “Objection against the complaint application” and “Conclusion of the complaint application” are regulated separately. With this regulation, it is aimed to achieve quick results for the protection of all intellectual and industrial rights, especially trademark rights. In this context, when there is a complaint regarding the violation of intellectual and industrial rights, the obligation to remove the product without investigation arises as a result of e-commerce platforms taking an active role in the protection of intellectual and industrial rights.
E-commerce platforms are accepted within the scope of “Electronic Commerce Intermediary Service Provider” (“ETAHS”) in the Regulation. In the Regulation, ETAHS is defined as follows: “Intermediary service provider that enables the execution of contracts or placing orders for the supply of goods or services of electronic commerce service providers in the electronic commerce marketplace”.
Another important term in the Regulation is “Electronic Commerce Service Provider” (“ETHS”) and it is defined as follows: “Service provider that enters into a contract or takes orders for the supply of goods or services in the electronic commerce marketplace or its own electronic commerce environment”.
The procedures and principles of the complaint to be made in case of violation of intellectual and industrial rights, and the rights and obligations of ETAHS and ETHS in this process are explained in detail below.
Complaint Regarding Violation of Intellectual and Industrial Property Rights:
According to the Regulation, a complaint application regarding intellectual and industrial property rights violations can be made to the ETAHS via the internal communication system, notary public or KEP (registered e-mail):
· The registration certificate showing the right ownership issued by the Turkish Patent and Trademark Office or the banderole form issued by the Ministry of Culture and Tourism or the activity certificate for professional associations within the scope of the Law on Intellectual and Artistic Works No. 5846.
· If the complainant is a real person, his/her name, surname, TR identity number, address information, e-mail address and KEP address, if any; If it is a legal person, its title, address information, e-mail address, KEP address, if any, and in case of a complaint as a proxy, the aforementioned information of the principal and the attorney, and the document showing that the attorney is authorized to represent.
· Reasons and evidence that the product, subject to the complaint, violates the intellectual and industrial property rights.
· Internet address that indicates the product subject to the complaint.
· Statement that the applicant is responsible for the damages that may arise in the event that the information and documents submitted within the scope of the complaint application are contrary to facts.
Applications that do not contain the above-mentioned issues, shall not be processed by ETAHS and the applicant shall be informed about the deficiencies.
In terms of applications that meet the above conditions, ETAHS shall remove the product subject to the complaint within 48 hours from the receipt of the complaint application and notify the ETHS and the rightsholder. In addition, the notification to ETHS shall explain the methods of appealing the complaint.
Objection Against the Complaint Regarding the Infringement of Intellectual and Industrial Property Rights:
ETHS has the right to object to this situation after the product subject to the complaint has been removed from publication. With the regulation, it is regulated that the objection shall be made to ETAHS through the internal communication system, notary public or KEP by ETHS, whose product has been discontinued. According to the Regulation, the following issues must be included in the objection against the complaint applications, and ETAHS shall not process the objection applications that do not contain the following issues and shall inform the complainant about the deficiencies.
· The name, surname, or title of the complainant and, in case of an objection as an authorized representative or attorney, a document showing that they are authorized to represent with their name and surname,
· Grounds for the objection, documents, and evidence that the discontinued product does not infringe the intellectual and industrial property rights of the complainant,
· Invoices or documents replacing invoices suitable for proving that the product is original, contracts, other documents and evidence showing the owner of the intellectual and industrial property right, starting from the original, or the persons who put the product on the market with the authorization of the rightsholder,
· Statement of the complainant that is responsible for the damages that may arise if the information and documents submitted within the scope of the objection application are false.
Completion of the Complaint Process
ETAHS shall review the objection filed by ETHS. The enquiry to be carried out by ETAHS is limited only to the enquiry of the information and documents obtained from ETHS. If it is clearly understood from the information and documents presented that ETHS is right in its objection, ETAHS shall re-publish the product subject to the complaint within 24 hours from the receipt of the objection application and notify the right owner and ETHS without delay.
ETAHS shall not process new complaint applications regarding the same product and claim and shall notify the applicant of this situation unless new documents proving the intellectual and industrial property rights violation are submitted.
As mentioned above, this method aims to prevent forfeiture of intellectual and industrial property rights more quickly. Therefore, people will not be prevented from applying to criminal or civil jurisdiction with these regulations. In this context, it is clearly stated in the Regulation that the persons concerned have the right to apply to the judicial and administrative authorities according to the general provisions.
Authors: Hatice Ekici Tağa, Bensu Özdemir, Ebru Gümüş