Lara Candoğan

Attorney

13.09.2022

Trademark Registration İn Startups and Protection Of The Enterprise

A startup is the realization of ideas arising from dreams and needs. Although having an idea leads to a Startup, the idea itself is not put under any protection in the Turkish legal system. This idea can only be protected if it is implemented as an invention, a product or software. What we should refer to are the Industrial Property Law and the Intellectual and Artistic Works Law. The real question is: how are startups protected?
 
Many entrepreneurs get confused about how they can protect their startups. On the other hand, failure to manage this process well can lead to great losses for the entrepreneur in the future. This article will shed light on how trademark registration is processed, especially in Startups, and how to protect the startup. Before we focus on the main topic of our article, it is useful to define "startup" and "trademark". 

 

I.                STARTUP
 

Although startup is a frequently used term today, there is no exact equivalent in Turkish. But we can call it girişim according to the general meaning of Startup in Turkish. A Startup is defined as an institution that offers an innovative product, process or service aimed at satisfying a market need. It is generally newly established and shows rapid growth. This institution can be a small business, partnership or organization. In short, a Startup is the implementation of business ideas by taking the initiative.

 

II.             TRADEMARK 

A trademark indicates that the item or service belongs to a certain business and serves to distinguish the item or service from its counterparts on the market. A trademark can consist of all kinds of signs, words, shapes, colors, letters, numbers, sounds, and the shape of the goods or their packaging. 
 
The most basic function of a trademark is to provide distinctiveness. Therefore, the thing that will be trademarked must be original and distinctive. 

The trademark is extremely important in terms of differentiating a Startup's products and services from their competitors. A distinctive and memorable trademark design allows a Startup company to be noticed and preferred by consumers.
 
 
 
 
III.           TRADEMARK REGISTRATION 
 
The protection of the name, shape, colors, letters, numbers or the form or packaging of the products or services including all rights of use belonging to the owner of the idea, is ensured by trademark registration.

In Turkey, the principle of registration has been adopted in order to benefit from trademark protection in accordance with the trademark law. On the other hand, it has been accepted that the right ownership of the company using the trademark in question can be accepted if the trademark is given distinctiveness with the prior use in Higher Judicial decisions. However, in order to accept the real ownership of rights, it is necessary to prove intensive use, and the rights granted by the trademark create difficulties in terms of the use of unregistered trademarks, so it is extremely important to register and use the trademark.

Issues such as the selection and research of trademarks, the state of registrability, trademark renewals, similar trademark objections, trademark license agreements are very important for trademark registration, so these issues should be thoroughly investigated before trademark registration is made. 

In order for a trademark to be registered, it is essential that it is included in the scope of the article 4 of the Industrial Property Law. A trademark that is contrary to the said article cannot be registered.

 

IV.           THE IMPORTANCE OF TRADEMARK REGISTRATION FOR STARTUPS
 

When starting a startup, every entrepreneur carries out a number of activities such as hiring employees, developing products, finding investors, and determining marketing strategies. However, in addition to these, an intellectual property strategy of the Startup company should also be determined, since determining this strategy is very important in terms of protecting the Startup company and the investments made within the scope of this Startup. 

 

We can put the importance of trademark registration for startups under 6 headings;

1-     Trademark Registration Gives Startups Reliability: Consumers trust a registered trademark much more. Thus, consumers also trust the Startup more.
 
2-     Trademark Registration Distinguishes a Startup From Competitors: Trademark registration also prevents competitors from imitating the trademark in question. When a trademark value is established, competing companies can mislead consumers by using signs similar to this trademark and make consumers prefer themselves. Trademark registration, on the other hand, prevents competitors from registering same or similar trademarks. Thus, competing companies cannot make an unlawful profit by using this trademark on their products. 
 
3-     Trademark Registration Strengthens Startup's Business Reputation: Startup owners can have a corporate structure by holding the registration of their trademark, and this causes a positive effect for Startup owners both in business relations and in investment organizations. Additionally, if a business has a good reputation, employees are more willing to work for that trademark.
 
4-     Trademark Registration Prevents Legal Problems that Startup Will Experience: When trademark registration is not received, there may always be legal problems with competitors. If a competitor registers the actual Startup's name, there is even a possibility that they can take your trademark from you. Registering a trademark legally protects it, and this assurance also facilitates the trademarking and growth process.
 
5-     Trademark Registration Provides Lifelong Protection: After a trademark is registered, it is protected for life. In order to maintain protection, it only needs to be renewed periodically, every 10 years. 
 
6-     Trademark Registration is the Most Important Asset of a Startup: The trademark being registered plays an important role in the valuation of the trademark, because the registration also provides assurance to investors. A trademark that provides assurance also encourages investors to invest in said Startup. 

 
 
V.              TRADEMARK REGISTRATION PROCESS OF STARTUPS 
 
It is extremely important to plan the trademark registration process correctly for startups. Startups go through the same trademark registration process as other companies, but founders need to be much more sensitive and careful in the process than other companies, as Startups have more limited opportunities at the establishment stage, unlike other companies. Below, the trademark registration process will be mentioned step by step.
 

1.      APPLICATION 

The first step that must be taken to obtain the industrial rights of a trademark is to apply to the Turkish Patent and Trademark Office. Trademark registration takes place by making an official application to the Turkish Patent and Trademark Office, formerly called the Turkish Patent Institute. This application can be made with the Startup's owners or the trademark attorneys registered with the Turkish Patent and Trademark Office authorized by the owners. Before the said application, it should be thoroughly investigated whether the trademark is suitable in the sector for registration. 

 

 

 

2.      EXAMINATION OF THE APPLICATION FORM 


             After the application process is completed, the Turkish Patent and Trademark Office examines the application in question and determines the trademarks that cannot be registered by looking at whether the application is contrary to the law and legislation. If the application form is in accordance with the legislation, they proceed to the next stage.

 

3.      EXAMINATION OF THE APPLICATION FOR SIMILARITIES 

          At this stage, it is examined whether the trademark that makes the application is indistinguishable from other registered trademarks or not. Signs which do not have any distinctive qualities are not considered trademarks because they do not carry the element of distinctiveness, and therefore their registration is also not possible. If it is decided that the trademark is original as a result of this examination, this stage will be completed successfully. 

 

4.      OFFICIAL TRADEMARK NEWSLETTER PROCESS

            In this process, the trademark that makes the application for registration is placed in the official trademark bulletin for two months. If there is no objection or counter-opinion during the announcement, the trademark is registered. If the registration document fee is paid by the applicant within the period, the registration document will be sent to the applicant and the application process will be successfully completed. 

 

VI.           DURATION OF TRADEMARK REGISTRATION AND OBJECTION

The registration process of startup trademarks used to take 10-12 months before 2017. After the Industrial Property Law No.6769 entered into force, the process became much faster and the registration of trademark applications decreased to a period of 4-6 months. However, in the contested files, this process takes longer.
 
The objection can be made about the decisions made against the applicant themselves. Additionally; 
3. Individuals may also file an objection in order to prevent the registration of similar trademarks to their own. Together with the objection, supporting evidence and data should be prepared and submitted to the Turkish Trademark and Patent Authority. In order for third parties to identify the brands to be objected to, they must follow the bulletin through their trademark attorneys.

 
 
 
 
VII.         CONCLUSION

             In this article, Startup, trademark, the importance of trademark registration in Startups and how to do it were discussed. It is extremely important for startups to carry out a fast and successful trademark registration process by taking correct and effective steps in order not to suffer major losses and losses in the future. For this reason, the necessary considerations should be fulfilled completely throughout the process and the process should be followed well. If these considerations are met, a successful trademark registration process takes place and thus they can use the advantages offered by trademark registration.

Trademark registration, which is one of the most important issues of Intellectual and Industrial Property Law, is examined together with the concept of start-ups, which are very popular today. Today, the fact that the trademark registration of start-ups, which are put forward with interesting and creative ideas, is not carried out in accordance with the law and correctly, is a barrier in terms of the protection of real initiatives. For this reason, it is of utmost importance that the trademark registration of start-ups is carried out properly. In this article, practices that will ensure that trademark registration is carried out in accordance with the law are mentioned.
LARA CANDOGAN