91 Union of Turkish Bar Associations Review 2023 Dilara Naz GÜLÜM increase.20 According to Arkan, when different goods/services are involved in assessing the existence of a likelihood of confusion, the risk of confusion diminishes, and there is no need for a high degree of distinctiveness.21 In the 2021 Trademark Examination Guideline published by TURKPATENT, it is indicated that the examination of similarity of goods/services will be conducted independently of the degree of similarity between the trademarks and the distinctiveness of the earlier trademark.22 In our view, while both the similarity of signs and the similarity of goods/services elements are necessary in terms of the presence of a likelihood of confusion23, it is primarily essential to evaluate whether the goods/services are similar. As mentioned, with the exception of well-known trademarks, the registration of a previously registered trademark for different goods/services is possible under Turkish law. Therefore, we agree with the perspective that the similarity of goods/ services and the similarity of the signs should be independently assessed. In the event of finding similarity between goods/services, we believe that the similarity of the sign and its high distinctiveness will increase the likelihood of confusion. II. THE DEGREE OF SIMILARITY AND THE CLASSIFICATION SYSTEM A. The Role of Nice Classification in Determining the Similarity of Goods/Services In accordance with Article 11/3 of the IPC, the goods or services subject to trademark applications are classified according to the Nice Agreement concerning the International Classification of Goods and 20 Paslı, p. 60. 21 Sabih Arkan, Marka Hukuku (Trademark Law), Vol. 1, Ankara 1997, p. 98. See also. Dilek İmirlioğlu, Marka Hukukunda Ayırt Edicilik ve Markanın Ayırt Ediciliğinin Zedelenmesi (Distinctiveness in Trademark Law and Dilution of Trademark Distinctiveness), 2nd Edition, Ankara 2018, p. 164. 22 2021 Guideline, p. 384. 23 Court of Cassation 11th Civil Chamber, D. 22.01.2015, Case No. 2014/15360, Judgment No. 2015/865 (Kazancı Case Law Database, Last Access Date: 06.06.2021).
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