Intellectual property rights

IP protection for software

What intellectual property rights are available to protect the software and how do you obtain those rights?

Unlike common law jurisdictions which provide patent protection to software-implemented inventions and subject to meeting certain criteria, even business methods, Turkey does not grant patent protection to software-implemented inventions and business methods. Copyright protection is the method that can be used to protect ownership of software rights.

If a copyrighted work such as software is created, it is not required to be registered and one owns the copyright and protection at the time it is created or made public . Nevertheless, there is a non-compulsory registration system at the General Directorate of Copyright of the Ministry of Culture and Tourism which requires little evidence. The general period of protection is the lifetime of the author plus 70 years.

No application similar to that of a patent application is required from a copyright owner.

Computer software and programs are classified in class 09 of the Turkish classification system published on the website of the Turkish Patent and Trademark Authority; however, each piece of software may contain features of more than one specific class and this should be taken into consideration.

Although software is generally protected by copyright, industrial property protection may also be provided under certain conditions. If software; works or works with a machine or device, or is connected to a machine or device, with this device, this machine or this system can be patented. Also, a computer program that performs a method that solves a technical problem can be protected by a patent. This protection is provided under the Industrial Property Law No. 6769 and the Turkish Patent and Trademark Office is authorized to perform related transactions.

IP developed by employees and contractors

Who owns new intellectual property developed by an employee in the course of their employment? Do the same rules apply to new intellectual property developed by contractors or consultants?

In principle, in accordance with the Industrial Property Law (Law No. 6769), unless otherwise agreed due to special contracts concluded between the parties (employer and employee) or the nature of the work, the rights to the designs made by the employees belong to the employer according to the job descriptions of the employees and the obligations arising from the employment contract; or because of the experiences and operations of the business organization.

For an invention to qualify as an “employee service invention”, it must have been made in the course of employment. The employee is obliged to declare the invention to his employer without delay in writing. In addition, free inventions which are employee inventions outside the scope of employee service inventions are also subject to reporting obligations for employees, who must make an invention declaration to their employer if the invention is made in under their employment contract.

Common ownership

Are there any restrictions on the right of a co-owner of intellectual property to use, license, charge, or assign their right in the intellectual property?

Certain restrictions and co-ownership provisions exist, both for copyright and for patents. With regard to copyright, the provisions and restrictions relating to co-ownership find their form in the Law on Intellectual and Industrial Rights (Law No. 5846). For patents, Law No. 6769 provides that co-ownership is permitted and imposes restrictions on patent holders of intellectual property rights.

According to Law No. 6769, if an invention is made by more than one person, each of the inventors can apply for a patent and these inventors are granted co-ownership.

If the design application or design is owned by more than one person, the partnership interest in the right is determined in accordance with the agreement between the parties, and in the absence of such agreement between the parties, it is determined in accordance with the provisions on joint ownership in the Turkish Civil Code No. 4721.

For a patent license to be granted to third parties in connection with the use of an invention, each of the rights holders must give their unanimous permission. Even in the case of co-ownership, the rights of the holders cannot be separated with regard to a patent application or a patent assignment. In addition, in the event of co-ownership, the rights holders may appoint a joint agent.

Finally, according to Law No. 5846, if a work is created by more than one author and if the work is of an inseparable nature, co-ownership is presumed and the ordinary partnership provisions under Turkish Obligations Law No. 6098 apply. .

Trade secrets

How are trade secrets protected? Are trade secrets kept confidential during legal proceedings?

Trade secrets are protected by several Turkish regulations, including the Turkish Penal Code.

Confidentiality obligations are established for various parties, including, but not limited to, members of the board of directors, shareholders, agents, auditors, employees and contractors. Trade secrets, such as technical production secrets, production methods, and research and development plans, are also protected by Law No. 6769.

According to Turkish Commercial Law No. 6102, the protection of trade secrets is stipulated as unfair competition, and persons who act in violation of the confidentiality obligation regarding trade secrets and disclose trade secrets in bad faith; and employees, representatives and other contractors who induce employers to disclose trade secrets will be subject to an administrative penalty or imprisonment for up to two years. In addition, according to this law, employers can seek pecuniary and non-pecuniary damages from persons who violate the obligation of confidentiality and the obligation of non-competition, resulting in unfair competition.

Regarding the protections offered during court proceedings where court records become public, the Turkish Code of Civil Procedure applies. Pursuant to Law #6100, parties who act in bad faith and unreasonably use legal process to gain access to trade secrets are liable for part or all of the fees in addition to a disciplinary fine.

In addition, in accordance with the modification of the banking law published in the Official Gazette of February 25, 2020, except for the mandatory provisions of the relevant legislation, customer information has been specified as “customer secret” and the criteria for processing and transfer of such information the information must be carried out in accordance with the Personal Data Protection Act (Law No. 6698). Client secrets will not be shared or transferred to third parties in Turkey and abroad, except in exceptional cases specified in the banking law. Even in cases where the customer gives his explicit consent regarding the processing of his personal data, this data cannot be transferred or shared nationally or abroad without the explicit request or order of the customer.

The Regulation on the Sharing of Confidential Information (the Regulation) was published in Official Gazette No. 31501 on June 4, 2021. Also referring to Law No. 6493, the regulation aims to determine the scope, procedures and principles of sharing. and transfer of bank secrets and client secrets. Under Article 73 of Law No. 5411, regulations have been established regarding the obligation of confidentiality, exceptions and the definition of “client secrecy”. In the regulation, all information concerning natural and legal persons becoming customers of a bank is included in the scope of application of customer secrecy. With the regulation, it became mandatory for banks to establish an information sharing committee. The committee will be responsible for coordinating the sharing of client secrecy and bank secrecy information, taking into account the proportionality factor, and recording these assessments by assessing the relevance of sharing requests. Finally, due to the nature of the transaction, it was necessary to interact with a bank, payment service provider, payment, security settlement or courier systems established in the country or abroad. , and it is a mandatory part of the transaction to share the customer’s secret information with parties in the country or abroad to complete the transaction. For transactions such as domestic or international funds transfers, international letter of credit, letter of guarantee, letter of reference, customer initiation of transaction or customer order entry via distribution channels of electronic banking has been considered the customer’s request or instruction in terms of such actions.

Branding

What intellectual property rights are available to protect the brand and how do you obtain those rights? How can fintech companies ensure they are not infringing on existing trademarks?

There are no specific regulations on the protection of intellectual property concerning fintech innovations. Intellectual and industrial property rights are generally protected by Law No. 5846 on Intellectual and Artistic Work and Law No. 6769. If fintech products or services are subject to industrial property rights (i.e., trademark or patent), patent or trademark is required. be registered with the Turkish Patent and Trademark Office. However, there is no registration requirement in terms of intellectual rights.

According to Law No. 5846, the ownership of a fintech innovation will belong to its first creator and he will be considered an author. If an employee creates an innovation during the employment contract, the author will be his employer. The duration of the intellectual property right corresponds to the life of the author plus 70 years.

Remedies for Intellectual Property Infringement

What remedies are available to individuals or companies whose intellectual property rights have been infringed?

According to Law No. 5846, authors whose intellectual property rights have been violated can:

  • bring a civil action regarding the prohibition of the infringement;
  • bring a civil action regarding the prevention of counterfeiting;
  • seek compensation; Where
  • bring a criminal action.

According to Law No. 6769, people whose rights are violated can:

  • bring a civil action regarding a probable infringement;
  • bring a civil action to stop the infringement;
  • bring a civil action regarding the removal of the infringement and seek compensation; Where
  • asks that the necessary precautions be taken.

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