The Five-Year Non-Use Cancellation Rule Under Article 9

Registered trade marks in Türkiye carry an ongoing obligation: they must be genuinely used in commercial life. Under Article 9 of the Industrial Property Code No. 6769, a trade mark registration will be revoked if the owner has not put the mark to serious use in Türkiye within five years of registration, or if such use has been suspended for an uninterrupted period of five years, without justifiable cause. This provision targets dormant or warehoused registrations and ensures that the Turkish trade mark register reflects marks that are actively present in the marketplace.

The Statutory Framework

Article 9(1) of the IPC states that a trade mark shall be revoked if, without justified cause, it has not been put to serious use in Türkiye by the trade mark owner for the goods or services for which it is registered, or if its use has been suspended for five consecutive years. The five-year period begins from the date of registration. There is no time limit for initiating a revocation action based on non-use — it can be filed at any point after the five-year period has elapsed.

What Constitutes Serious Use

Serious use means genuine commercial use of the mark in Türkiye, aimed at creating or maintaining a market share for the goods or services for which the mark is registered. The use must go beyond merely symbolic or token acts designed solely to preserve the registration. TÜRKPATENT and the courts consider several factors:

• Use in Türkiye: The mark must be used within Turkish territory. However, use on goods or packaging solely for export from Türkiye is expressly recognised as use within the country under Article 9(2)(b).
• Use as a trade mark: The mark must function as a source identifier, not merely as a decorative element or trade name.
• Sufficient volume and frequency: The quantity and regularity of use must be consistent with genuine commercial activity for the relevant goods or services. For everyday consumer products, higher volumes are expected; for luxury or specialised goods, even limited sales may qualify.
• Use for the registered goods or services: Use must relate to the specific goods or services covered by the registration. If the mark is used only for some of the registered goods, revocation may be granted for the remainder.

Forms of Use That Qualify

Article 9(2) specifies several situations that qualify as use of the mark:

• Use of the mark in a form differing in elements that do not alter its distinctive character from the form in which it was registered.
• Use of the mark on goods or packaging solely for export purposes from Türkiye.
• Use of the mark with the owner’s consent by a third party, such as a licensee.

Justifiable Reasons for Non-Use

The owner may avoid revocation by demonstrating justifiable reasons for the lack of use. These must be circumstances beyond the owner’s control, such as government restrictions, import bans, regulatory obstacles, or force majeure events. Strategic decisions to delay a product launch, unfavourable market conditions, or internal business restructuring are generally not considered justifiable reasons.

The Revocation Procedure

Under the current framework, revocation actions for non-use are filed before TÜRKPATENT. Any person may file a revocation request. Previously, non-use cancellation actions could only be brought before the courts, but the IPC transferred this jurisdiction to the Office (with Article 26, which entered into force in January 2024 after a seven-year transitional period).

Once a revocation action is filed, the burden of proof shifts to the trade mark owner to demonstrate genuine use during the relevant five-year period. If the owner cannot submit adequate evidence or establish justifiable reasons for non-use, the mark will be revoked in whole or in part. Partial revocation applies where the owner can prove use for some but not all of the registered goods or services.

Non-Use in the Context of Oppositions and Invalidation

The non-use obligation intersects with other proceedings:

• Oppositions: Under Article 19(2), if the opponent’s mark has been registered for more than five years, the applicant can request proof of use. If the opponent fails, the opposition under Article 6(1) is dismissed.
• Invalidation actions: Under Article 25(7), if the plaintiff’s mark has been registered for at least five years at the application date of the mark being challenged, the plaintiff must also prove it meets the use requirements of Article 19.

This creates a consistent framework: trade mark rights in Türkiye are enforceable only to the extent the mark is genuinely used.

The Warehousing Risk

Türkiye’s high filing volume — consistently exceeding 130,000 applications per year, the highest in Europe — means the register is crowded. Dormant marks that are not used but remain on the register create obstacles for new applicants. The five-year non-use rule provides a critical mechanism to clear these obstacles, and both applicants and established brand owners should be aware of its implications.

Strategic Recommendations

• Use your marks promptly: Begin genuine commercial use in Türkiye within five years of registration. Do not treat registration as a placeholder for indefinite future use.
• Maintain use evidence: Keep organised records of invoices, advertisements, packaging, customs documentation, and photographs demonstrating the mark in commercial use in Türkiye.
• Audit your portfolio regularly: Identify marks that are not in active use and consider whether to invest in commercial activity, license the mark, or allow the registration to lapse.
• Use non-use revocation offensively: If a dormant registration is blocking your application or market entry, a revocation action under Article 9 can clear the register efficiently.
• Specify goods and services carefully: Register only for goods and services you genuinely intend to use. Overly broad specifications create vulnerabilities for partial revocation.

Key Takeaway

Türkiye’s five-year non-use rule ensures that trade mark rights are tied to genuine commercial activity. Registrations that sit dormant are vulnerable to revocation by any interested party, and the burden of proving use falls on the owner. For brand owners, this means that registration is only the beginning — ongoing use and documentation are essential to maintaining rights. For new market entrants, the revocation procedure offers an effective tool to clear blocking marks from the register.