93 Union of Turkish Bar Associations Review 2023 Dilara Naz GÜLÜM made for the trademark.28 In accordance with the first paragraph of Article 2 of the said Agreement, the classification does not have a binding effect on the assessment of the scope of protection afforded to any registered trademark. The second paragraph of the same article specifies that each state has the right to use the classification system provided by the Nice Agreement as the main system or as an auxiliary system. At this point, it is beneficial to evaluate the binding nature of the Nice classification system in relation to the issue of the similarity of goods/ services. In this context, two questions come to mind. Firstly, what role will the classification system play in the assessment of similarity when an objection is raised upon the publication of a trademark application submitted to TURKPATENT for registration? Secondly, what role does the classification system play in the assessment of similarity of goods/ services that courts will undertake in cases brought before them? Article 11/4 of the IPC stipulates that “The fact that goods or services are in the same classes shall not be inferred as indicating their similarity, and the fact that they are in different classes shall not be inferred as indicating their dissimilarity.” Article 24 of Decree-Law No. 556 also specifies that the classification of goods and services was intended for the purpose of trademark registration. In this context, legal doctrine expresses that attributing a power to the classification system beyond the function of registration would not be accurate.29 In its 2007 CASA decision, the Court of Cassation stated that the Nice classification is not binding.30 In the light of these statements and precedents, it can be argued that in the evaluation of similarity of goods/services within the specific context of a court case, there is no obligation to interpret that the absence of the same Nice classes implies the absence of similar goods/services. In summary, although the Communiqué on Classification issued by TURKPATENT can be 28 Ünsal, p. 5. 29 Çolak, p. 212; Paslı, p. 31; Ünal Tekinalp, Fikri Mülkiyet Hukuku (Intellectual Property Law), 5th Edition, Istanbul 2012, p. 442; Uzunallı, p. 682, 683. 30 Court of Cassation 11th Civil Chamber, D. 05.02.2007, Case No. 2005/13645, Judgment No. 2007/1319. See also. Court of Cassation 11th Civil Chamber, D. 27.04.2015, Case No. 2015/865, Judgment No. 2015/5841 (Kazancı Case Law Database, Last accessed: 06.06.2021).
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