103 Union of Turkish Bar Associations Review 2023 Dilara Naz GÜLÜM B. Criteria Used in Determining the Similarity of Goods/ Services The assessment of the similarity of goods/services should be carried out based on consistent, transparent, and predictable criteria.74 It is evident that the definition of similar goods/services under the GATT can only serve as an indirect source in trademark law practice.75 Therefore, it would be beneficial to address the various criteria presented in the 2021 Guidelines, as well as in legal doctrine and judicial decisions, regarding how the concept of similar goods/ services can be interpreted. According to Uzunallı, the similarity of goods/services should be determined based on the perspective of the relevant public, regardless of other factors to be considered in assessing the likelihood of confusion. The relevant public refers to average consumers, and the level of attention and perception of an average consumer can vary based on the nature, type, and price of the goods or services in question.76 According to principles in practice, doctrine, and general understandings, the similarity or associable nature of goods and services can arise in the following situations: • Similarity in the nature of goods and services, • Similarity in the purposes and fields of use of goods and services, • Similarity in the relevant public of goods and services, • Similarity in the physical appearance of goods, • Similarity in the sales channels/places of goods and services, • Similarity arising from the goods and services of the same origin, 74 Uzunallı, p. 679. The Court of Cassation stated that the determination of similarity of goods/services is a matter that cannot be resolved solely by the judge’s general and professional knowledge, and expert examination is necessary. See. Court of Cassation 11th Civil Chamber, D. 15.10.2009, Case No. 2008/5938, Judgment No. 2009/10605 (Çolak, p. 224). See also. Court of Cassation 11th Civil Chamber, D. 07.07.2011, Case No. 2009/8446, Judgment No. 2011/8433; Court of Cassation 11th Civil Chamber, D. 18.12.2017, Case No. 2016/5668, Judgment No. 2017/7320; Court of Cassation 11th Civil Chamber, D. 12.07.2018, Case No. 2016/11784, Judgment No. 2018/5059 (Kazancı Case Law Database, Last accessed: 06.06.2021). 75 Paslı, p. 70. 76 Uzunallı, p. 684.
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