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claims can be submitted only if evidence is provided during the appli-
cation phase. Claims can also be submitted during the objection phase
if the application is refused.
Demonstration of Acquired Distinctiveness through Use
Some of the criteria to be considered when determining whether a
mark has acquired distinctiveness or not through use are listed in the
Trademark Examination Guidelines. However, the criteria listed in said
Guidelines is not exhaustive and does not prevent claimants from pre-
senting other criteria to prove acquired distinctiveness.
Principally, it must be proven that the mark indicated in the appli-
cation is presently in use and has acquired distinctiveness related to the
same goods and/or services indicated in the application. It must also be
proven that the mark is perceived as a trademark in Turkey. Proof of
acquired distinctiveness abroad is not sufficient for registration in
Turkey.
The relevant public for the goods and/or services covered by the
mark should be taken into consideration in evaluating the evidence
submitted regarding the proof of distinctiveness. If these goods and/or
services in question are, by their very nature, addressed to specialists
or a limited public, the evidence regarding the relevant public is essen-
tial and sufficient. On the other hand, food and beverage products are
available to all consumers. In that case, the evidence must further
demonstrate that the mark is perceived as a trademark by a sufficient-
ly large portion of the public.
Opinion polls, surveys, statements from trade and consumer orga-
nizations, articles, brochures, samples, turnover and advertising/pro-
motion figures, successful infringement prosecutions, and previous
trade mark registrations can be served as proof for acquisition of dis-
tinctiveness through use.
Well-conducted opinion polls are particularly persuasive if the
questions are relevant and not leading. This applies in particular to
polls or surveys carried out by independent and well-recognized orga-
nizations or institutions. Evidence from independent trade associa-
tions, consumer organizations and competitors should also be given
weight. Evidence from the people related with the applicant, such as
suppliers or distributors, should generally be given less weight.
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NEWSLETTER 2014