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Brand stretching and brand sharing in tobacco products

Brand stretching and brand sharing in tobacco products

Following the obligation under the WHO Framework Convention on Tobacco Control, Turkey has also adopted the restrictions with regard to brand stretching and brand sharing for tobacco products. On July 04, 2012, paragraph 15 of Article 3 of the Law No. 4207 on Pertaining the Elimination and Control of Harmful Effects of Tobacco Products (the “Law numbered 4207”) was amended and the amendment makes clear that a tobacco brand name, emblem, trademark, logo or other signs or any other distinctive features shall not be used for non-tobacco goods and services.

Following this amendment, the Regulatory Authority for Tobacco and Alcoholic Drinks Market (the “Authority”) published a decision (the “Decision”) setting forth the implementation of Article 3/15 of the Law numbered 4207. The Decision has been published in the Official Gazette dated November 20, 2012 and numbered 28473.

Both the Law and the Decision provides clear provisions stating that a tobacco brand name, emblem, trademark, logo or other signs or any other distinctive features (including distinctive colour combinations) shall not be used for non-tobacco goods and services. However the new regulations are silent regarding the coexisting trademarks (trademarks which have been used for both tobacco and non-tobacco products for a long time) and more specifically as to whether one of the coexisting trademarks would need to be eliminated or not and if so, which of the trademarks would have the priority and continue to exist.

While, the Decision suggests that the “likelihood of association” test should be applicable, considering the ambiguity of such an assessment, it would have been preferable if there were a clear provision setting forth the status of the coexisting trademarks.

Therefore, it appears that the application of this amendment may be problematic. More problems may arise since, according to the official announcement of the Deputy Prime Minister, the Authority will be closed soon and its powers and responsibilities will be distributed to the three relevant Ministries: the Ministry of Food, Agriculture and Husbandry, the Ministry of Health and the Ministry of Finance. These three Ministries will be undertaking the Authority’s tasks. However it has not yet been discussed, which of the three Ministries shall control the implementation of the new amendment regarding brand stretching and brand sharing. Due to its nature related to trademarks, it could be argued that the Turkish Patent Institute and the Intellectual Property Courts shall be authorized to examine these cases.

Hande Hançer
Dicle Doğan

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