Retroactive application of a law in a trademark protection case violated the Convention


Kamoy Radyo Televizyon Yayıncılık ve Organizasyon A.Ş. v. Turkey 16-04-2019 (no. 19965/06)

see here


The case concerned the applicant company’s proceedings to protect a trademark, which led to the
domestic courts applying a piece of legislation retroactively and its action being rejected. The Court noted that the Turkish Constitutional Court had subsequently annulled the piece of legislation which had led to the applicant company losing its case as it had found that the law in question had conflicted with fundamental property rights.
Furthermore, the Court saw no public interest reason to justify the interference with the applicant
company’s property rights and found there had been a violation of the Convention


Article 1 of the First Additional Protocol


The applicant company, Kamoy Radyo Televizyon Yayıncılık ve Organizasyon A.Ş., is a Turkish
company which is registered in Ankara (Turkey).

A company affiliated with the applicant company began publishing a newspaper, Özlenen Gazete
Vatan, in 1999 after registering the name as a trademark, but it closed the title after two months for
financial reasons.

Another company, Bağımsız Gazetecilik Yayıncılık A.Ş., began publishing a newspaper called Vatan in
September 2002, prompting the affiliated company to start proceedings to protect its trademark in
the Istanbul Intellectual Property Court. The trademark was later transferred to the applicant
company and it became a party to the proceedings.

The first-instance court rejected the applicant company’s trademark protection claim in 2004, a
decision which was upheld on appeal in the Court of Cassation in 2005.

In particular, the domestic courts relied on section 31(2) of the Turkish Patent Institute Act, which
came into force in November 2003, during the proceedings. That law stated that publishers of
periodicals could not be prevented from publication by trademark law, specifically Legislative Decree
no. 556 on the Protection of Trademarks.

Bağımsız Gazetecilik began its own proceedings in 2004 and succeeded in 2006 in having the
applicant company’s trademark registration annulled and being given the right to the name.
Separately, the Constitutional Court in 2008 annulled section 31(2) of the Patent Institute Act,
finding that it did not conform to the property rights guaranteed by the Constitution.


The applicant company argued that it had been unjustifiably deprived of its right to the trademark by
a retroactive application of the law to its disadvantage.

The Government submitted that there had been no interference with the applicant company’s
rights. In particular, it had only had a conditional right to the trademark as a newspaper called Vatan
had existed in the past and it was a well-known name. In addition, by the time Bağımsız Gazetecilik
had begun its own proceedings to annul the applicant company’s trademark, the applicant company
had not used the name for five years.

When it came to the retroactive application of legislation, the Government argued that the courts
had to apply the laws that were in force at the time of their judgments.

The Court held that the applicant company could claim to have had a possession within the meaning
of the Convention as it had had a right recognised by law and not just a legitimate expectation of
obtaining a property right.

There had also been an interference with that possession owing to the application of section 31(2) of
the Turkish Patent Institute Act. The Court had to assess whether the interference had been
justified, specifically, whether there had been a public interest at stake.

The Court gave no weight to the Government’s argument that the applicant company had not used
the trademarked name for five years when Bağımsız Gazetecilik had begun its own trademark

In fact, the applicant company had not complained about its trademark registration being annulled
because it had not used it for five years, which was allowed under patent law, but that the courts
had not protected its right to the trademark during the five-year period of validity.

That period had not expired when the courts had applied section 31(2) of the Patent Institute Act,
which had by then come into force. Furthermore, the Court of Cassation had made no mention of
the five-year period, only section 31(2).

The Court noted that the Constitutional Court had subsequently annulled that provision as it had
made the law on the protection of trademarks meaningless and had breached fundamental rights The Government had not made any arguments for their having been a legitimate aim for the piece of legislation in question. Nor could it see any justification on general interest grounds for the way the legal dispute between the companies had been settled by the retroactive application of the law.

For those reasons the Government had not shown that the interference with the applicant
company’s property rights had served a public interest and there had been a violation of Article 1 of
Protocol No. to the Convention.

Just satisfaction (Article 41)

The Court held that Turkey was to pay the applicant 1,500 euros (EUR) in respect of non-pecuniary

Separate opinion

Judge Lemmens expressed a dissenting opinion which is annexed to the judgment( editing).


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