A trademark is defined in Article 4 of the Industrial Property Code (IPC) No. 6769[i] as signs such as personal names, figures, letters, numbers, the shape or packaging of goods, provided that they serve to distinguish the goods or services of one undertaking from those of another. In other words, a trademark is a distinctive sign that reflects the commercial identity of businesses and makes their goods and services recognizable in the market. The Nike logo or the stylized script of Coca-Cola are typical examples of trademarks. Trademark infringement arises when a mark is used without the authorization of its proprietor or when it is imitated in a manner that undermines its distinctiveness and reputation. Pursuant to Article 29 of the Industrial Property Code (IPC), the use of identical or indistinguishably similar signs for the same goods or services without the proprietor’s consent constitutes trademark infringement. For example, selling sneakers under the label “Adibas” or affixing a famous brand’s logo to counterfeit products qualifies as trademark infringement.
Copyright, on the other hand, is regulated under the Law on Intellectual and Artistic Works (“Fikir ve Sanat Eserleri Kanunu – FSEK”) No. 5846[ii]. According to the statute, a “work” is defined as an intellectual or artistic product that bears the characteristics of its author and is created in the fields of science, literature, music, fine arts, or cinema (Article 1 FSEK). The author is granted both economic rights (such as reproduction, distribution, adaptation, performance) and moral rights (such as the right to be acknowledged as the author and the right to protect the integrity of the work). Copyright infringement occurs when these rights are exercised without the authorization of the right holder. For instance, sharing a cartoonist’s drawing on social media without permission or uploading a musical work to YouTube without authorization constitutes copyright infringement.
The fundamental difference between trademark infringement and copyright infringement lies in the legal interests in which they aim to protect. Trademark infringement concerns the unauthorized use of commercial signs and essentially safeguards the economic value of businesses as well as consumer protection through accurate information. Copyright infringement, however, pertains to the protection of literary, artistic, and scientific works, aiming to safeguard the creative labor of the author. Thus, the sale of counterfeit Louis Vuitton handbags constitutes trademark infringement, whereas the unauthorized dissemination of the brand’s advertising jingle amounts to copyright infringement.
Although trademark and copyright infringements are subject to different legal regimes, they frequently overlap in the digital environment. For example, an e-commerce platform may simultaneously engage in trademark infringement by selling counterfeit goods and copyright infringement by using unauthorized product images.
The advancement of technology and the penetration of digitalization into all areas of life have significantly affected intellectual property law and trademark protection. With the proliferation of the internet, users can quickly access information, works, and products; this creates both opportunities and risks for copyright holders and trademark proprietors. Today, the unauthorized dissemination or imitation of not only intellectual creations such as music, films, and cartoons but also trademarks has become a prevalent issue in the online environment.
In recent times, the unauthorized sharing of works by renowned cartoonists on social media accounts and various websites has brought copyright infringements to the forefront. Similarly, the distinctive signs of trademarks are frequently infringed in the context of counterfeit product sales on e-commerce platforms or through unauthorized advertising on social media. Such practices cause significant harm not only to copyright holders but also to trademark proprietors.
The rapid increase in internet usage has facilitated the migration of unlawful content and even criminal activities into the digital sphere. In response to these issues, the legislator has enacted a series of regulations, foremost among them being Law No. 5651 on the Regulation of Publications on the Internet and Combating Crimes Committed through Such Publications, which entered into force in 2007[iii] and has since been amended several times. Commonly referred to as the “Internet Law,” this statute introduced the concepts of content provider, hosting provider, and access provider, assigning distinct legal responsibilities to each.
Under Law No. 5651, a content provider is defined as “any natural or legal person who produces, alters, and provides any kind of information or data made available to users through the internet.” A hosting provider, on the other hand, is defined as “any natural or legal person who provides or operates systems that host services and content.” In websites requiring membership or account ownership, the account holder or member who shares the content is considered the content provider, whereas the natural or legal person owning the website itself qualifies as the hosting provider. However, if the content is uploaded or produced directly by the administrator of the website, the natural or legal person owning the site assumes the role of content provider, while the company providing the hosting service functions as the hosting provider. Hosting, in technical terms, refers to the service of storing the files, data, and content of websites or applications on powerful servers to ensure their continuous accessibility. In practice, all data necessary for the operation of a website are stored by a “hosting provider” and made available over the internet.
The Liability of Content Providers and Hosting Providers
When encountering online content that infringes trademark rights, two different actors comes into hand. The first is the content provider, who directly commits the infringement; the second is the hosting provider, who enables the continued existence of such content on the internet. However, the anonymous nature of the internet and the fact that the infringer may be located in another country often make it difficult to reach the content provider. For this reason, right holders frequently turn to hosting providers, who are more accessible and possess the technical capacity to intervene. Although hosting providers do not directly commit the infringement, they often find themselves at the center of liability debates.
In Turkey, the most comprehensive regulation in this area is the Law No. 5651 of 2007 on the Regulation of Publications on the Internet and Combating Crimes Committed through Such Publications. This statute defines the concepts of content provider, hosting provider, access provider, and collective use provider, and sets out their respective obligations. While the content provider is directly liable for the content it makes available on the internet (Art. 4), the hosting provider is defined merely as the person who provides the systems hosting the services and content (Art. 5), and as a rule is not liable for such content. However, pursuant to Articles 8 and 9 of the Law, once notified or made aware of unlawful content, the hosting provider has the obligation to remove such content. This mechanism is known in Turkish law as the “notice-and-takedown” system, and the liability of the hosting provider arises only if it fails to act after becoming aware of the illegality.
The critical distinction here lies in whether the hosting provider is in an active or passive position. If the hosting provider merely offers technical infrastructure and has no direct influence over the content, it is deemed passive and benefits from the safe harbor principle. Safe harbor constitutes a special exemption regime preventing internet actors—particularly hosting providers and intermediary service providers—from being held directly liable for unlawful content. Turkish law reflects this approach: Article 5 of Law No. 5651 explicitly states that the hosting provider has “no obligation to monitor the content it hosts”; however, Articles 8 and 9 impose a duty to remove the content once informed of its illegality. In this way, a balance is struck: platforms are not unfairly subjected to automatic liability, yet right holders are provided with a remedy against platforms that fail to act upon notice.
A similar approach is adopted under European Union law. The E-Commerce Directive established the safe harbor principle: platforms that remain passive and provide only technical infrastructure are exempt from liability, whereas platforms that highlight content, encourage sellers, or otherwise interact with content for economic gain cannot benefit from this protection. Indeed, in the European Court of Justice decision in L’Oréal v. eBay (C-324/09, 2011), the Court emphasized that eBay was not a merely passive platform; by encouraging sellers and providing logistical support, it assumed an active role and therefore could not invoke safe harbor protection. [iv]
This approach has also influenced Turkish law and has been reinforced through new obligations imposed on e-commerce platforms. Thus, the dual structure whereby hosting providers are exempt from liability so long as they remain passive, but are held directly liable when they act actively, has become a shared principle in both EU and Turkish law.
In addition to Law No. 5651, The Law on the Regulation of Electronic Commerce No. 6563, enacted in 2014[v], was another significant step. This statute introduced the concept of the “intermediary service provider,” encompassing platforms that enable third parties to carry out economic and commercial activities electronically (for example, Trendyol, Hepsiburada, N11). With the amendments introduced by Law No. 7416, which entered into force in 2022[vi], the liability of these platforms has been further clarified: they are now obliged to remove content within 48 hours following the notice from a right holder. Thus, hosting providers are no longer purely passive but are also required to take active measures in certain circumstances. This development demonstrates the convergence of Turkish law with the EU approach.
In practice, decisions of the Court of Cassation (Yargıtay) also clarify this distinction. In its 2014 decision[vii], the General Assembly of Civil Chambers explicitly stated that a hosting provider cannot be expected to be aware of third-party infringements, but liability arises if it fails to remove the content after being notified of the infringement. Likewise, in its 2019 decision[viii], the 11th Civil Chamber emphasized that a hosting provider cannot be held directly liable in cases of alleged trademark infringement; however, it may be held liable if it fails to act after receiving notice. These rulings demonstrate that hosting providers are held liable not on the basis of strict liability but according to a notice-based regime. Concrete examples also make this distinction clearer. For instance, on social media platforms such as Instagram and TikTok, advertisements for counterfeit products are created by content providers. In order for these advertisements to be removed, trademark holders must lodge complaints; if the platforms in the position of hosting providers fail to remove the content after notice, liability arises. On e-commerce platforms such as Trendyol, however, the 48-hour rule introduced by Law No. 7416 establishes an active duty for hosting providers. Thus, if the sale of the product continues despite the right holder’s notice, the platform may face direct liability. These examples contribute to a clearer understanding of the legal responsibilities of content providers and hosting providers.
The role of hosting providers in the online environment has become increasingly significant with the rapid growth of digitalization and e-commerce. Although content providers are directly liable, their often-anonymous nature or presence in foreign jurisdictions makes them difficult to reach for right holders. For this reason, hosting providers, who have the technical ability to block or remove content, have become central to liability discussions. The “notice-and-takedown” mechanism introduced by Law No. 5651, followed by the enactment of Laws No. 6563 and 7416, has transformed the liability of hosting providers from a purely passive role into an obligation to take active measures in certain situations. Thus, in parallel with the EU approach, while the safe harbour regime remains intact, stronger protection is ensured against trademark and intellectual property infringements. The Court of Cassation’s case law supports this approach, making it clear that hosting providers cannot be held directly liable, but liability arises if they fail to act after being notified. For instance, The Court of Cassation 11th Civil Chamber’s verdict numbered as 21.01.2020 T., 2019/5303 E., 2020/629 K. Stated that despite a formal notice being served, the content should not be removed, and emphasized it as: “In the present case, it is established that before filing the lawsuit, the plaintiffs’ notices were received by the defendant hosting provider, and since the content was not removed, the plaintiffs applied to the competent criminal court of peace to secure removal. Therefore, the interpretation of the court of first instance that the notice served by the plaintiffs was procedurally invalid and thus did not give rise to liability is incorrect. The court should have taken into consideration the period during which the infringing statements—found to constitute unfair competition and notified to the defendant—remained online between the expiry of the deadlines specified in the notices and the date of their removal, and should have ruled accordingly on the plaintiff’s claims for damages and other remedies. The decision to dismiss the case was therefore inappropriate and required reversal.” By this reasoning, the Court accepted that a hosting provider who fails to remove content after being put on notice may be held liable for damages and further underlined that the period during which the content remains online after notice must be taken into account in the calculation of compensation[ix].
When unlawful content is not removed even after the notice, the course of action available to the right holder depends on the nature of the claim. Namely, Requests for blocking access or removal of content are considered interim protection measures under Articles 9 and 9/A of Law No. 5651, and the competent authority for such applications is the Criminal Judgeship of Peace. By contrast, if the infringement concerns copyright, pursuant to Article 76 of the Law on Intellectual and Artistic Works (FSEK) No. 5846, the competent court is the Intellectual and Industrial Rights Civil Court, or, in jurisdictions where such courts do not exist, the Civil Court of First Instance will be the competent court. In such cases, claims may be brought for injunctions against infringement, cessation, damages, and interim measures (Articles 66 et seq. FSEK). In cases of trademark infringement, under Article 156 of the Industrial Property Code (IPC) No. 6769, the competent courts are again the Intellectual and Industrial Rights Civil Courts, or in their absence, the Civil Courts of First Instance. Here too, claims may include prevention of infringement, termination of violation, pecuniary and non-pecuniary damages, as well as interim measures (Articles 149 et seq. IPC). Finally, depending on the nature of the infringement, if the act falls within the scope of criminal provisions under Articles 71 et seq. of the FSEK or the Turkish Penal Code, the hosting provider, even if not the direct perpetrator, may also be subject to criminal liability due to its contribution to the continued availability of the unlawful content.
Paragraph 3 of Article 156 of the Industrial Property Code (IPC) regulates jurisdiction in such cases. Accordingly, in civil actions brought by the right holder against third parties, jurisdiction is a matter of the plaintiff’s choice, allowing the case to be filed before the court of the plaintiff’s domicile, or the court of the place where the unlawful act was committed, or where its effects were observed. Determining the plaintiff’s domicile is relatively straightforward. However, in cases where infringements occur via the internet, it becomes crucial—so as to avoid dismissal on grounds of lack of jurisdiction—to determine which courts qualify as “the place where the unlawful act was committed” and “the place where its effects were observed.” For online infringements, identifying where the unlawful act was committed requires consideration of where the infringing act took place. In cases of infringement of industrial property rights through the internet, the unlawful act consists of uploading or making the infringing content available online; therefore, the competent court is that of the place where such acts occurred. When trademarks, designs, or similar industrial rights are infringed online, it is also necessary to establish where the effects of the infringement are observed.
In this respect, a decision of the Court of Cassation 11th Chamber regarding television broadcasting, which is analogous, stated: “…the court should have considered that the television broadcast was made within the jurisdictional boundaries of the court, and that therefore the court where the tort occurred was also competent. Instead of dismissing the case for lack of jurisdiction, the court should have proceeded to examine the merits and rendered a decision accordingly; the contrary ruling was found incorrect and required reversal.” [x]
On this basis, when the infringing act is committed via a website accessible from Turkey—i.e., where a trademark, design, or similar right is used without authorization on a website accessible in Turkey—it must be accepted that the effects of such infringement can be observed everywhere in the country. Consequently, provided that the right holder does not abuse this right, an action may be filed before any competent court in Turkey[xi].
In addition, with the adoption of Law No. 7155 on 06/12/2018 [xii], a provision was added to Article 5/A of the Turkish Commercial Code, making mediation mandatory for claims arising from intellectual property rights that involve the payment of a monetary amount, such as compensation and debt claims. Accordingly, for example, there is no obligation to resort to mediation before filing an annulment action against decisions of the Turkish Patent and Trademark Office relating to intellectual property rights, nor before filing an invalidity action against such rights. By contrast, in cases of infringement of intellectual property rights—such as damages claims arising from the counterfeiting of a trademark or patent—mediation must be attempted before filing a lawsuit. Likewise, when a claim concerns the payment of license fees under a license agreement for intellectual property right, mediation is mandatory prior to litigation.
Another important point to note is that, in the field of intellectual property, it is widely accepted that all disputes arising from contracts containing an arbitration clause are arbitrable. However, some scholars argue that rights subject to registration cannot be submitted to arbitration, on the grounds that the right holder cannot freely dispose of such rights, that protection is available only after registration, and that registration becomes valid only following the examination of the competent authority[xiii]. In Turkey, registration procedures are carried out by the Turkish Patent and Trademark Office, an administrative body acting under public authority, which means that registrations produce effects erga omnes [xiv]. Indeed, Article 1 of the International Arbitration Law No. 4686 provides that “disputes relating to in rem rights over immovable property located in Turkey and disputes not subject to the parties’ will not be subject to arbitration.” Since registration procedures are not subject to the will of the parties, disputes concerning the registration, annulment, or invalidity of intellectual property rights such as trademarks, patents, and designs cannot be submitted to arbitration. Consequently, in order for an intellectual property dispute to be referred to arbitration, it must be one that is subject to the will of the parties and over which they may freely dispose. From this perspective, disputes arising from contractual relationships relating to intellectual property rights—such as license and assignment agreements—as well as disputes concerning claims of infringement of intellectual property rights may be deemed arbitrable under Turkish law.
In conclusion, content providers are held directly liable in cases of trademark and copyright infringement and may face not only legal sanctions such as injunctions to cease the infringement, compensation, seizure and destruction of infringing products, but also criminal penalties including imprisonment and judicial fines. Hosting providers, on the other hand, are not liable for content as a rule; however, under the “notice-and-takedown” mechanism, they are obliged to remove infringing content upon notification by the right holder. Failure to comply with this obligation may give rise to claims for damages and administrative fines, and liability becomes even more stringent for platforms that play an active role. Although hosting providers do not generally bear direct criminal liability, if they knowingly and deliberately facilitate the infringement, their responsibility may be considered within the framework of the rules on participation in crime.
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Aysu SERKE
Uçar Law & Consultancy Office
Editor: Baver UÇAR (Attorney at Law)
References
[i] 6769 Sayılı Kanun – Sınai Mülkiyet Kanunu (2016)
https://www.mevzuat.gov.tr/mevzuatmetin/1.5.6769.pdf
[ii] 5846 Sayılı Kanun – Fikir ve Sanat Eserleri Kanunu (1951)
https://www.mevzuat.gov.tr/mevzuatmetin/1.3.5846.pdf
[iii] 5651 Sayılı Kanun – İnternet Ortamında Yapılan Yayınların Düzenlenmesi ve Bu Yayınlar Yoluyla İşlenen Suçlarla Mücadele Edilmesi Hakkında Kanun (2007)
https://www.mevzuat.gov.tr/mevzuat?MevzuatNo=5651&MevzuatTur=1&MevzuatTertip=5
[iv] Yasaman, Zeynep. “Avrupa Birliği ve Türk Hukuku Bakımından İnternet Yer Sağlayıcılarının Marka İhlalleri Kapsamında Sorumlulukları”. Marmara Üniversitesi Avrupa Araştırmaları Enstitüsü Avrupa Araştırmaları Dergisi 27/2 (31 Aralık 2019): 263-291. https://doi.org/10.29228/mjes.16
[v] 6563 Sayılı Kanun – Elektronik Ticaretin Düzenlenmesi Hakkında Kanun (2014)
https://www.mevzuat.gov.tr/MevzuatMetin/1.5.6563.pdf
[vi] 7416 Sayılı Kanun – 6563 Sayılı Kanun’da Değişiklik Yapılmasına Dair Kanun (2022)
https://www.resmigazete.gov.tr/eskiler/2022/07/20220707-2.htm
[vii] Yargıtay Hukuk Genel Kurulu, 15.01.2014 T., 2013/1138 E., 2014/16 K., LEXPERA İçtihat, https://www.lexpera.com.tr/ictihat/yargitay/hukuk-genel-kurulu-e-2013-1138-k-2014-16-t-15-1-2014
[viii] Yargıtay 11. Hukuk Dairesi, 16.12.2019 T., 2019/618 E., 2019/8167 K., LEXPERA İçtihat, https://www.lexpera.com.tr/ictihat/yargitay/11-hukuk-dairesi-e-2019-618-k-2019-8167-t-16-12-2019
[ix] Yargıtay 11. Hukuk Dairesi, 21.01.2020 T., 2019/5303 E., 2020/629 K., LEXPERA İçtihat, https://www.lexpera.com.tr/ictihat/yargitay/11-hukuk-dairesi-e-2019-5303-k-2020-629-t-21-1-2020
[x] Yargıtay 11. HD, 14.06.2010 T., 2009/1387 E., 2010/6824 K. (Alıntılandığı yer: Uğur Çolak, Türk Marka Hukuku, On İki Levha Yayıncılık, İstanbul, 2018, s. 758)
[xi] Çolak, Uğur. Türk Marka Hukuku. On İki Levha Yayıncılık, İstanbul, 2018, s. 758.
[xii] 6102 Sayılı Kanun – Türk Ticaret Kanunu (2011)
https://www.mevzuat.gov.tr/mevzuat?MevzuatNo=6102&MevzuatTur=1&MevzuatTertip=5
[xiii] Ateşçi, Kardelen. Türk Hukuku Uyarınca Tahkime Elverişlilik ve Tahkime Elverişli Olmayan Haller. AHG, 2021, s. 19.
[xiv] Bozkurt Yüksel, Armağan Ebru. Fikri Mülkiyet Uyuşmazlıklarında Tahkim. Banka ve Ticaret Hukuku Dergisi, 2009, s. 358.
