Introduction
A trademark is a sign that serves to distinguish the goods and services of one undertaking from those of others and enables consumers to establish an association between the product or service and its source.
Under Turkish law, the types of signs that may be registered as trademarks are explicitly regulated in Article 4 of the Industrial Property Code No. 6769 (“IPC”). Pursuant to this provision, a trademark may consist of “any signs, including personal names, words, figures, letters, numbers, colors, sounds, and the shape of goods or their packaging.” However, in order to be eligible for registration, such signs must be distinctive and capable of being represented in the trademark register in a clear, precise, intelligible, and objective manner.
Non-traditional trademarks encompass signs that go beyond conventional word and logo marks, often incorporating innovative and creative elements. These include three-dimensional shape marks, packaging marks, sound marks, color marks, motion marks, hologram marks as well as position marks.
Following the entry into force of the IP Code at the beginning of the year 2017, the registration process for non-traditional trademarks in Türkiye has become more favorable, leading to a significant increase in applications in this area. In particular, there are now numerous examples of three-dimensional shape marks, packaging marks, sound marks, color marks, motion marks, and position marks being registered before the Turkish Patent and Trademark Office (TPTO).
Nevertheless, despite this progress, judicial enforcement of such trademarks remains limited in practice, with relatively few court decisions addressing their protection.
This article aims to review the Turkish Supreme Court’s approach to non-traditional trademarks within the framework of existing case law, with a focus on the legal criteria adopted and practical implications for trademark enforcement in Türkiye.
I. Position Marks
In its 2024 decision concerning PUMA (11th Civil Chamber of the Supreme Court, E. 2024/4695, K. 2024/8718), the Turkish Supreme Court established significant criteria regarding the protection of position marks. The Court emphasized the importance of how a position mark is perceived in the mind of the average consumer and acknowledged that the use of a similar position on a product may create the impression of a commercial or economic link between undertakings.
The Court further held that the fact that the defendant had used its own well-known mark alongside the contested position mark was not sufficient to eliminate the likelihood of confusion.
It emphasized the dominant role of the figurative element, found that the marks were similar from the consumer's perspective, and concluded that the use was made in bad faith. As a result, the Court granted a broad scope of protection to position marks.
II. Three-Dimensional Trademarks and Designs
Another significant issue highlighted in the Supreme Court’s case law is the ability to successfully oppose design registrations by relying on three-dimensional trademarks, which are a type of non-traditional mark. In its 2015 decision (11th Civil Chamber of the Supreme Court, E. 2015/1180, K. 2015/7386) and in a 2013 decision concerning a lighter product (11th Civil Chamber of the Supreme Court, E. 2013/11025, K. 2014/87), the plaintiffs sought the invalidation of a registered design on the basis of their earlier three-dimensional trademarks. In both cases, the Supreme Court accepted the claims.
The Court found that the shape subject to the design registration created the same overall impression on the informed user as the earlier three-dimensional trademark. It concluded that the similarities between the two were sufficient to deprive the design of the required novelty. These rulings demonstrate that trademarks—particularly non-traditional ones—may serve not only to protect rights within their own legal domain but also as an effective tool against conflicting industrial property rights, such as designs.
III. Packaging Trademarks and the Assessment of Color Use on Packaging as a Trademark
In the Ülker Napoliten case (11th Civil Chamber of the Supreme Court, E. 2015/5438, K. 2015/12846), the Turkish Supreme Court offered a noteworthy evaluation regarding the distinctiveness of color use and product imagery on packaging. The Court held that the use of the color red on the packaging, in and of itself, was not distinctive due to its widespread use in the relevant sector; it therefore did not give rise to a likelihood of confusion among consumers, and the overall appearance of the packaging trademarks at issue was deemed sufficiently different.
Through this decision, the Supreme Court emphasized that, for packaging trademarks—and especially for the use of color on such packaging—to qualify for trademark protection, they must create a strong distinctive character in the perception of the consumer.
IV. Color Trademarks
In its Milka decision (11th Civil Chamber of the Supreme Court, E. 2015/6881, K. 2016/1095), the Turkish Supreme Court adopted a restrictive approach to the protection of color trademarks. The Court emphasized that consumers are unlikely to confuse products solely based on the similarity of color tones, and that differences in the overall appearance of the products are sufficient to prevent confusion. By doing so, the Court set a high threshold for distinctiveness in the context of color marks and thus afforded a relatively limited scope of protection.
V. Conclusion and Evaluation
The case law of the Turkish Supreme Court provides important precedents for the protection of non-traditional trademarks, both within the scope of trademark law and in relation to other industrial property rights. The key principles derived from the decisions can be summarized as follows:
In the context of position marks, consumer perception is the primary consideration, and where the figurative element is dominant, the likelihood of confusion is interpreted more broadly.
With respect to packaging marks and the use of color on packaging, a high degree of distinctiveness is required for trademark protection, with an emphasis placed on the assessment of the overall appearance.
The recognition that design registrations may be successfully challenged based on earlier three-dimensional trademarks illustrates that non-traditional marks can serve as effective tools not only within the field of trademark law but also in the domain of design law.
As for color trademarks, mere similarity in color tones is not deemed sufficient for infringement; rather, the overall impression created by the packaging—including font style and variations in tone—is taken into account, resulting in a narrower scope of protection.
In this regard, the Turkish Supreme Court’s approach demonstrates that a high threshold of distinctiveness is applied to non-traditional trademarks, and that their protection requires a careful analysis based on consumer perception. Courts tend to find that such marks may not fulfill the same established trademark function as traditional marks. As a result, concrete evidence of the mark’s distinctive character and source-identifying function becomes crucial—both during the registration process and in infringement proceedings. Accordingly, the effective protection of non-traditional trademarks necessitates a strategic approach to brand development and a deliberately structured practice of consistent and distinctive use.
