86 “Identity or Similarity of Goods of Services” Under The Industrial Property Code No. 6769 INTRODUCTION In the Industrial Property Code No. 6769,1 as2 in the Decree-Law No. 556 on the Protection of Trademarks,3 provisions are introduced to protect the rights of prior holders who have applied for or registered their trademarks. Within this scope, if the registration of an identical or indistinguishably similar trademark for identical/similar goods/ services is requested, the Turkish Patent and Trademark Office4 has the authority to reject the application ex officio.5 Additionally, if the registration of an identical/similar trademark for identical/similar goods/services is requested, the previous applicant/trademark holder is granted the opportunity to raise an objection.6 As the relative ground for refusal regulated in Article 6/1 of the IPC is also stated as a ground for invalidity in Article 25/1 of the same law, the concepts of “identical/similar trademark,” “identical/ similar goods/services,” and “likelihood of confusion” are essential terms that need to be discussed due to the crucial role in shaping the practice.7 The subject of our study, “identity/similarity of goods/ services,” has frequently been interpreted in legal doctrine and court decisions. However, within the scope of legal regulations in the context of trademark law, how this concept will be precisely defined remains uncertain. Within the scope of our study, we will primarily focus on the position and importance of goods/services identity/similarity in Turkish legal system, along with its connection to the likelihood of confusion. Following that, we will attempt to explain the method depending the degree of similarity and the role of the classification system in determining identity/similarity. Finally, the study will 1 OJ, D. 10.01.2017, N. 29944. Throughout the remainder of the study, “IPC” will be used as a brief reference. 2 OJ, D. 27.06.1995, N. 22326. Throughout the remainder of the study, “Decree-Law No. 556” will be used as a brief reference. 3 Decree-Law No. 556, Art. 8/1-a, Art. 8/1-b, and Art. 42/1-b. 4 Throughout the remainder of the study, “TURKPATENT” will be used as a brief reference. 5 IPC Art. 5/1-ç. 6 IPC Art 6/1. 7 The relevant concepts have been evaluated in both doctrine and judicial decisions during the period of Decree-Law No. 556; however, the topic still maintains its significance.
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