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Intellectual Property and Art Law
Intellectual property rights’ main principles are as follows: Registry principle, principle of territoriality, real right owner principle, priority principle, the right to use beforehand, exhaustion principle, losing a right because of being silent principle.
Work (Work of Art): It is every type of intellectual or artistic work which is apart of one of the groups such as literature, music, fine arts and designs, cinema which are shown in FSEK (Intellectual and Artistic Law) and carry the trait of their owner. The owner of a work is the person who creates it. If a work is made by more than one person and if it may be divided into different parts then it may be called a joint work ownership. In this situation every single one of the work owners, own the part which they have created. If a work made by more than one person may not be divided to separate parts then it may called work ownership owned in shares.
The work owner’s moral rights: The right to present to the public, the right to indicate the name, the right to prevent any changes to be made on the work, the right to be able to reach the original work, the right to expose, the right to prevent the destruction of the work.
Economic rights: Derivative rights, right to reproduce, right to distribute, right to represent, the right to transmit to the public via means of broadcast.
Other rights: the right of shares and to follow, right to withdraw, right to waiver. Also the producer’s, publishers and performers who help to distribute the work amongst the public under the name of joint (neighbour) rights are protected with the Copyright Law.
Economic rights of the works owner are protected throughout their lives and continue to be protected 70 years after their deaths as well whereas moral rights are only protected throughout the work owner’s life. In the case of violation the work owner may open a detection suit, detection suit of violation, suit of stopping or removing violation and a compensation suit.
Producer, publisher and performer contributing to become widespread the work of art in society are protected under the name of related rights with copyright law. The owners of neighboring rights are performer artists,phonogram producers and radio-television broadcaster.Other related right owner is film producers
Economic rights of the works owner are protected throughout their lives and continue to be protected 70 years after their deaths as well whereas moral rights are only protected throughout the work owner’s life. The related rights are protected 70 years as a rule. In the case of violation the work owner may open a detection suit, detection suit of violation, suit of stopping or removing violation and a compensation suit.
Trademark: Trademark is a sign that helps to distinguish a company’s items or services with the items and services of another company. A trademark has the functions of being a guaranty, advertisement or source. Trademarks are separated into two as property and service trademarks according to if the thing they mark is an item or service.
Along with this by taking into consideration the trademark’s owners and functions they are separated into three as separate trademarks, joint trademarks and guaranty trademarks. Any type of sign of peoples names, words, symbols, letters, numbers and types of items or their package which can be seen as drawings or may be expressed by creation with print in a similar way and which can be reproduced may be registered as a trademark.
Distinguishing is the most important condition which is searched for in order to register something as a trademark. An application to register a trademark is made to the Turkish Patent Institute (TPE). If the application conditions have all been met and if it has not been rejected after a formal inspection and absolute rejection reasons then the trademark registration application is published in the Official Trademark Bulletin. Objection to TPE decisions is possible.
An application which is made fully without any missing details or if the missing details have been rectified and in the time for objection if one has not been made or if the rejection has been defiantly rejected will be registered to the registry.
A trademark registration document is given to the person who has made the application and the information is published in the Official Trademark Gazette. A trademark right ends when the time of protection has run out if it is not renewed after its time has run out, the trademark owner renounces this right and with the invalidity of the trademark.
Patent: It is defined as a document which protects the discovery maker’s creative ideas for a certain time. Patents are separated as product and form patents or as patents which are examined not examined. Along with these a discovery which perfects or improves the discovery which was patented and which is found as a unity with the main patent subject is called additional patent.
The subject of the patent is a discovery. In order for a patent to be given these conditions must be present; it must be new, the technique must surpass the already known and must be able to be applied in industry. Patents which are against public order and general morals are not given.
A person who has the right to ask for a patent may apply for a patent in Turkey or they may also make an international patent application as well. The patent owner or the person whom they have given authority to is obligated to use the discovery which is protected with a patent which was patented in 3 years since the announcement that the patent was granted published in the bulletin. The right which was born from the patent expires when the period of protection has finished, if it is renounced or the yearly payments are not made or when the patent is invalid. The protection period for patents which are not inspected is 7 years whereas the protection for a patent which is given after inspection runs out in 20 years.
Beneficial model: The document which is given for discovery’s which has a beneficial character is called beneficial model document. It has the same effect as a patent.
Designs: they are the things which help distinguish how one product looks from the other products. They have various types such as registered-unregistered designs, two dimensional-three dimensional designs, aesthetic and functional design, a design which is industrial or not industrial, fashion designs, piece or reserve piece designs, and unseen designs. Registered designs which have a modern and distinguishing nature as long as they are renewed every 5 years may be protected for a maximum of 25 years.
Registered industrial rights and applications relating them may be transferred.
Licence: It is when the owner of a right gives the authority to use this right to the licensee. The rights which the licence owner acquires are called licence rights. The types of licences are as follows: Regional-national licence, Simple-Monopolized licence, Normal-Sublicense, Voluntary-Mandatory licence, Controversial-Non controversial licence, Complete-partial licence.
In case of violation, claims of a holder of rights and law suits:
Civil cases: Detection suit (detection of evidence, detection of violation, suit relating the fact that there is no violation) Actions for performance (case to stop a possible violation, case to stop violation, material compensation suit, law suit for non-pecuniary damages, dignity suit.
Know-how: Defined in the appropriate way it is the hidden, essential and main technical information group. The components of Know-how are: secrecy, essentialness and the ability to define, in other words certainty. The buyer of know-how’s main goal is to be able to achieve competition advantage above their rivals with the information they get in this way. In this scope the information as a rule must be secretive because of its nature. With the reason that it creates a competition advantage after observing the fact that it may be requested by other businesses as well, it is seen that for information and experience to be accepted in this scope it must be transferable in other words it must be possible to transfer it to someone else.
In the doctrine all information which has an independent economic value and creates a completion advantage in favour of the owner of economic activity, which is not open to the public and is wanted to be kept hidden by the owner is accepted as confidential business information (Trade Secret).
Unfair competition: It is every type of misusage of economic competition by deceitful actions and various types of actions which are ill natured (against good will). Fault is only looked for when opening compensation suits which are based on wrongful acts. A few of these are; dispraising, giving wrong information (untrue information), deceitful advertisement, deceitful name and symbol usage, ambiguity (creating confusion), dispatching the assistant’s duties for violation, benefiting from someone else’s trade secrets, disobeying the conditions of business life. At the end of this a detection suit, suit to prevent, suit of correction, material compensation suit, suit for non-pecuniary damages may be opened. The plaintiffs may be the rivals, customers and the professional unions. The most important type of unfair competition is ambiguity (creating confusion). Ambiguity (creating confusion) is to benefit from someone else’s client population by creating confusion.
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