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Commercial Title, Trademark, Trademark Infringement by Using Commercial Title

"...As for the case in question:

The plaintiff private university was founded as "Atılım University", provides educational services under this founding statute, and thus is using the word "Atılım" in describing its services. Further, it introduces its services with the same name.

The services of the defendant specified in its trade registry conflicts with the plaintiff's services covered by the plaintiff's registered and unregistered trademark.

As both parties provide educational services, undoubtedly there is competition between the parties to gain more students. The fact that while one party is a private university does not change this fact. Within the context of Article 57/1-5 of the Turkish Commercial Code, the defendant's registration of the word "Atılım" as a commercial name to which the plaintiff has a prior right created confusion since the same word is being used by both parties for the same services. The effect of this on the public will be that consumers will wrongly assume that the plaintiff's university belongs to the defendant or that the defendant's schools and universities belong to the plaintiff since the defendant's commercial name starts with the word "Atılım".

Article 41 of the Turkish Commercial Code makes it compulsory for the defendant to use commercial name on all its businesses and documents and put its commercial name on the front of its place of business so that others may easily see it. Therefore since the plaintiff and the defendant will attach the same distinctive sign to the front of their business places, it is inevitable that consumers will confuse the origin of the universities or schools. Since both parties' schools fall within the scope of educational services, they are deemed the same statutorily. It should not be ignored that "opening university" falls within the scope of the defendant's commercial activity. The word "Atılım" ought not to be restrictively treated as an element in the commercial name.

Moreover, the core of the defendant's commercial name, that is the part where the law seeks distinctiveness, is the word "Atılım". The rest, "Fen Eğitim Saglık Turizm Insaat Ltd. Sti.", which defines the character of the activities and the kind of company will not be regarded as creating confusion since it is descriptive.

For that reason, when a confusion assessment is made on the plaintiff's name and service mark "Atılım" and the distinctive element of the defendant's word "Atılım", it is distinct that the phrase in the defendant's commercial name, which was registered later by the defendant, infringes the plaintiff's unregistered trademark and causes unfair competition. It should be concluded that the conditions to remove the phrase "Atılım" from the defendant's commercial name are met because there exists infringement of the plaintiff's prior gained rights through the use of the word "Atılım" as name and unregistered trademark." (General Board of Court of Appeals, E. 2007/11-965, K. 2007/961, D. 12.12.2007)

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