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Patent, Jurisdiction

"...Article 34 of the Decree Law numbered 554 stipulates that, "An application which has been accorded a date of filing in accordance with the provisions of Articles 32 and 33 will be entered in the Design Register" and Article 48/2 of the same Decree Law states that, "Where the application for a design has been published in accordance with Article 34 of this Decree-Law, the application right holder has the right to institute civil and penal proceedings against the infringing party. Where the infringing party has been informed of the application and its scope, infringement will be considered to have existed before the publication when the court rules that the infringing party was acting in bad faith."

On the other hand, Article 159 of the Decree Law numbered 551 states that, "In order to obtain a utility model certificate, the documents cited in Article 42 of this present Decree-Law will be filed before the Institute with the application, stating clearly that protection by grant of a utility model certificate is requested. The provisions of Articles 43 and 53 of this present Decree-Law will apply for rendering definite (fixing) the date of the filing of the application for a Utility Model Certificate." Article 43 of the same Decree Law sets forth, "The date of filing of the application for a patent becomes definite (is fixed) on the date, hour, and minute when the applicant files the following documents drawn up in the form specified in the regulation with the Turkish Patent Institute or the authority designated by same."

In the subject case, the representative of the plaintiff claims that the plaintiff holds Industrial Design and Utility Model Certificates and demands protection with amendment plea in accordance with the Decree Law numbered 554.

Furthermore, it was determined by reports issued by the Turkish Patent Institute that the plaintiff was given a Utility Model Certificate.

Accordingly, it was inappropriate for the Court to issue a lack of jurisdiction decision after insufficient examination since the Court was supposed to accept that the Court was a competent court to hear the case since the industrial design and utility model applications by the plaintiff were accepted, the plaintiff mentioned about industrial design and utility model, and the plaintiff demanded protection in accordance with the Decree Law numbered 554." (11th Unit of Court of Appeal, 2007/8524, 2008/11747, D. 23.10.2008)

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