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Turkish Court of Cassation’s decision on search and seizure orders strengthens IP owners’ position

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Zeynep Seda Alhas and Atahan Erkul of Gün + Partners explain a precedential ruling’s impact on brand owners seeking to obtain search and seizure warrants with regard to counterfeits

Pursuing the criminal complaint route against counterfeits is highly effective in Turkey, yet several criminal courts are hesitant in granting search and seizure warrants.

The most problematic courthouse in this respect has been that of Istanbul. This courthouse is important because its jurisdiction covers significant locations for brand owners, such as Grand Bazaar, Taksim, and Tahtakale. The criminal courts of the Istanbul courthouse have been rejecting search and seizure warrant requests, without any concrete and satisfactory justification, for quite some time.

Gün + Partners, among many other law firms involved in the practice, has been collaborating with non-governmental organisations and holding several high-level meetings with the Turkish Ministry of Justice to attempt to resolve this long-standing, arguably incorrect, practice of certain courts.

An important precedent

On September 23 2022, the Istanbul courthouse’s 4th Criminal Court accepted a complainant’s objection against a decision of the 3rd Criminal Court rejecting a search and seizure warrant request as usual, based on a recent non-published decision by the Turkish Court of Cassation (CoC), and granted a search and seizure warrant.

The CoC’s decision was issued by the 19th Criminal Chamber with Nos. 2020/1872 and 2021/318 on January 21 2021 and constitutes an important precedent for brand owners.

In the conflict, the brand owners filed a joint criminal complaint before the Istanbul Public Prosecutor’s Office and the specialised intellectual property (IP) prosecutor requested a search and seizure warrant from the criminal court on duty. The evidence in the file was a test purchase from the infringer with a receipt and an expert opinion confirming the counterfeit nature of the purchased goods.

The Istanbul 3rd Criminal Court rejected the search and seizure request, merely stating that “there is no objective and convincing evidence to create reasonable doubt as to the crime, which is necessary for granting a search and seizure warrant”. The court also stated that the expert opinion could not be deemed to be objective because it had been brought before the court by the complainants.

Upon the complaint’s objection, the 4th Criminal Court took over the matter. While accepting the objection and granting a search and seizure warrant, it referred to the above-mentioned decision by the CoC and found the submitted evidence sufficient, and determined the presence of reasonable doubt for allowing a raid to be conducted at the address, which led to the seizure of hundreds of counterfeits and the prevention of a crime.

In the conflict subject to the CoC’s precedential decision, the complainants could not file a receipt or an invoice confirming where the goods were purchased from, but they filed an expert report confirming the counterfeit nature of the samples purchased without receipt, and an undercover police investigation was ordered by the local Prosecutor’s Office, which also confirmed continuing sales at the related address.

The CoC’s chamber determined that an expert report could be taken into consideration as sufficient evidence for ‘reasonable doubt’ because the undercover police investigation’s minutes also supported the complainants’ claims. The chamber also specified that the brand owners would not file complaints against sellers of genuine products, because that would not be in line with the ordinary course of life.

Final thoughts

The reasoning of the CoC’s decision was well prepared and emphasised that complaints by brand owners shall be evaluated in a broader manner because it would not be logical to expect them to file complaints to seize originals. This does not mean that the criminal courts should not seek further evidence, such as receipts and police investigation reports, to back up the complaints of brand owners, but direct and unreasoned refusal decisions of the criminal courts are no longer to be accepted without question.

Even though brand owners might have had unpleasant experiences during criminal proceedings in recent years, this decision by the CoC has already started to have an effect. Indeed, Gün + Partners has managed to obtain several search and seizure warrants from the Istanbul courthouse. This also shows how important it is to seek a better IP ecosystem and practice.

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