Likelihood of Confusion Under Article 6(1) of the Industrial Property Code

The most frequently invoked ground for opposing a trade mark application in Türkiye is likelihood of confusion under Article 6(1) of the Industrial Property Code No. 6769. This provision requires TÜRKPATENT to refuse a trade mark application, upon opposition, if there exists a likelihood of confusion on the part of the public — including a likelihood of association — due to the identity or similarity of the marks and the identity or similarity of the goods or services. The assessment is a global appreciation that weighs multiple factors interdependently.

The Three-Element Test

For an opposition under Article 6(1) to succeed, three elements must be established:

1. The Marks Are Identical or Similar

TÜRKPATENT compares the marks across three dimensions: visual, phonetic, and conceptual similarity. Similarity in any one dimension may be sufficient to establish overall similarity, though the weight given to each factor depends on the nature of the marks and the relevant goods.

Visual similarity considers the overall appearance of the marks, including their structure, length, common and differing elements, and the arrangement of letters or figurative components. Phonetic similarity assesses how the marks sound when spoken, taking into account syllabic structure, stress patterns, and the likelihood of slurred or imprecise pronunciation. Conceptual similarity examines whether the marks convey the same or a related idea or meaning to the average Turkish consumer, even if their visual and phonetic forms differ.

2. The Goods or Services Are Identical or Similar

The comparison of goods and services considers factors such as their nature, intended purpose, method of use, whether they are complementary or in competition, their distribution channels, and the relevant consumer base. Goods in the same Nice class are not automatically considered similar, nor are goods in different classes automatically dissimilar — the assessment is substantive, not mechanical.

3. There Is a Likelihood of Confusion

The ultimate question is whether the average consumer of the relevant goods or services, exercising ordinary attention, would be likely to confuse the two marks or believe that the goods originate from the same or economically linked undertaking. This includes a likelihood of association — the consumer may not directly confuse the marks but may assume a connection between the parties.

The Dominant Element Principle

For composite marks — marks that combine word and figurative elements, or multiple word elements — the analysis focuses on the dominant element. The dominant element is the component that is most likely to attract the consumer’s attention and be retained in memory. In Turkish practice:

• Word elements generally dominate figurative elements: Consumers tend to refer to marks by their verbal components. A word-plus-device mark is typically compared primarily on the basis of its word element.
• Distinctive elements outweigh descriptive or generic elements: If a composite mark includes a descriptive term alongside a distinctive word, the distinctive word is treated as the dominant element. Generic terms, common industry words, or widely used device elements carry less weight.
• The overall impression still matters: Even where a dominant element is identified, TÜRKPATENT considers the mark as a whole. In some cases, the combination of elements may create a sufficiently distinct overall impression to avoid confusion, even if individual components are similar.

Interdependence of Factors

TÜRKPATENT applies the interdependence principle, consistent with EU trade mark jurisprudence. This means that a lower degree of similarity between the marks may be offset by a higher degree of similarity between the goods, and vice versa. A mark that is only moderately similar to an earlier mark may still create a likelihood of confusion if the goods are identical. Conversely, even highly similar marks may coexist if the goods are sufficiently different.

Additional factors that inform the global assessment include:

• The distinctiveness of the earlier mark: A highly distinctive or well-known earlier mark enjoys a broader scope of protection. Marks that are inherently distinctive (coined or arbitrary words) are afforded wider protection than marks that are suggestive or have only modest distinctiveness.
• The attention level of the relevant consumer: For everyday consumer goods purchased with little deliberation, the risk of confusion is higher. For specialised or expensive goods purchased with care, a higher threshold applies.
• Evidence of actual confusion: While not required, evidence that consumers have actually confused the marks in the marketplace is highly persuasive.

Responding to a Likelihood of Confusion Opposition

An applicant facing an Article 6(1) opposition may respond by:

• Arguing that the marks are sufficiently different in their visual, phonetic, or conceptual impression to avoid confusion.
• Demonstrating that the goods or services are not similar or closely related.
• Invoking the proof of use defence under Article 19(2) if the opponent’s mark has been registered for more than five years.
• Submitting a letter of consent from the opponent (though this addresses identical/indistinguishable marks under absolute grounds rather than the Article 6(1) assessment directly).

Key Takeaway

Likelihood of confusion in Türkiye is assessed through a global appreciation of visual, phonetic, and conceptual similarity between the marks, the similarity of the goods or services, and the attention level of the average consumer. For composite marks, the dominant element — typically the most distinctive word component — drives the comparison. The interdependence principle means that strong similarity in one factor can compensate for weaker similarity in another. Brand owners should assess all three dimensions carefully before filing or opposing, and applicants should be prepared to invoke the proof of use defence where available.