Selling counterfeit products is a crime under Turkish law; imprisonment and judicial fines are stipulated for sellers who commit this act. Manufacturing, offering for sale, or selling imitations of a registered trademark for commercial purposes directly constitutes the crime of trademark infringement. The concept of counterfeit product refers to the exact copying of a registered trademark, design, or distinctive sign without the consent of the right holder in order to obtain an unlawful benefit. Trade in goods referred to in the market as imitations, replicas, or fakes requires prosecution within the scope of the seller’s criminal liability, even if it is expressly disclosed to the buyer that the product is counterfeit.
Under which law is the sale of counterfeit products considered a crime?
The sale of counterfeit products is regulated as the crime of trademark infringement under the Industrial Property Code No. 6769 (IPC). In order to protect intellectual property rights, the legislator has defined the unauthorized use of registered trademarks as a distinct criminal offense. Registration protection grants the right holder the authority to use their trademark as they wish and to prevent infringements thereof.
Under the systematic framework of the IPC, for the offense to occur, the trademark must be registered in Turkey before the Turkish Patent and Trademark Office (TÜRKPATENT). Signs registered abroad but not protected in Turkey do not enjoy direct protection under this Code. However, investigations initiated upon complaint of the registered right holder directly target both the manufacturer and the end seller distributing to the market.
What is the penalty imposed on a person who sells counterfeit products?
A person who sells, offers for sale, or possesses for these purposes counterfeit products by imitating a registered trademark belonging to another person shall be sentenced to imprisonment from one to three years and a judicial fine of up to twenty thousand days. This penalty is expressly provided for in Article 30/1 of the Industrial Property Code No. 6769 (IPC). The Code subjects not only those selling in physical stores, but also sellers transacting via the internet and social media, to the same sanction.
The judicial fine to be determined by the court is calculated on a daily unit rate based on the fault and economic conditions of the seller. As a rule, imprisonment and judicial fines are imposed concurrently. If the criminal record of the seller and the conditions of the case file are appropriate, the suspension of the pronouncement of the verdict (HAGB) or the suspension of the sentence may be considered at the discretion of the court.
What are the required elements for the seller’s criminal liability?
For criminal liability of the seller to arise, the trademark must be registered, the act must serve a commercial purpose, and the seller must have acted with intent. The perpetrator’s possession of the goods for personal use is not punishable; however, offering for sale, displaying in a storefront, storing, or transporting constitute evidence of commercial purpose. The element of intent means that the seller knows the product sold is counterfeit or is in a position to know as required by commercial prudence.
In practice, excuses frequently asserted by sellers to evade criminal liability are rejected by courts. The following elements are taken into account in establishing liability:
- Purchasing and selling the product at a price substantially below its market value creates a presumption that the seller was aware of the counterfeit nature.
- The absence of an invoice from the wholesaler or the issuance of a misleading invoice does not absolve the seller of liability.
- Affixing labels indicating “not original”, “replica”, or “imported product” onto the product does not eliminate the crime.
How do the competent court and the complaint process function?
The court of competent jurisdiction in criminal cases concerning the sale of counterfeit products is the Criminal Court for Intellectual and Industrial Property Rights; in courthouses where this specialized court does not exist, the Criminal Court of First Instance has jurisdiction. For example, in judicial districts where the retail and tourism sectors are vibrant, such as Antalya, these cases are adjudicated directly by the Criminal Court for Intellectual and Industrial Property Rights.
The investigation process is, as a rule, subject to the complaint of the right holder. The person whose trademark rights have been infringed, or their legal representative, must file a criminal complaint with the competent Chief Public Prosecutor’s Office within 6 months from the date they become aware of the perpetrator and the act. This period is of a preclusive nature; once the 6-month statutory period lapses, criminal prosecution cannot be initiated. However, if the trademark infringement continues within the general statutory limitation period, the final day of the continuous act is deemed the commencement of the complaint period.
During the investigation phase, search of the business premises may be conducted pursuant to an instruction from the public prosecutor’s office and a warrant from the criminal judgeship of peace. Seized counterfeit products are confiscated and placed into judicial custody. If a conviction is rendered at the conclusion of the trial, forfeiture of the counterfeit products to the public domain or their destruction is ordered.
How are effective repentance provisions applied in the trade of counterfeit goods?
If the person offering for sale or selling the counterfeit product discloses to the competent authorities where and from whom such product was procured and thereby enables the apprehension of the manufacturers or other suppliers, no penalty shall be imposed on that person. This mechanism, governed under Article 30/7 of the IPC, is designated as effective repentance. To benefit from this right, the seller must surrender the goods in their possession, and the information provided must serve to identify specific perpetrators.
For effective repentance to apply, the suspect is expected to expose a supply chain that has not yet been identified by law enforcement or the prosecution. Abstract, generalized, or unverifiable statements do not result in impunity. The suspect must substantiate the statement with concrete evidence, such as invoices, communication records, bank receipts, and address information.
Common mistakes made in practice by counterfeit product sellers
The greatest misconception among sellers of counterfeit products is the belief that purchasing products from a wholesaler or transacting with an invoice will completely exempt them from criminal liability. Pursuant to the Turkish Commercial Code, every merchant or tradesperson is obligated to act as a prudent businessperson in their business dealings. Claiming lack of knowledge regarding the counterfeit nature of a luxury brand sold far below fair market value is considered contrary to the ordinary course of life by judicial authorities.
Other common misconceptions include:
- The defense that “I told the customer it was counterfeit, I deceived no one” is legally invalid; the offense is committed directly against the registered trademark holder, not the consumer.
- Stating “I bought the products online from an intermediary platform” does not eliminate liability; the seller is obligated to verify the authenticity of the product offered for sale.
- It is assumed that making minor modifications to the brand logo on packaging avoids infringement; however, even the likelihood of confusion (creating similarity that leads to confusion) suffices for the offense to materialize.
Case study: Sale of counterfeit products on an e-commerce platform
A vendor operating an online marketplace shop listed footwear of a renowned athletic brand with substantial market value at half price under the description “original factory surplus”. Authorized attorneys representing the brand in Turkey conducted a test purchase via a public notary and documented via technical examination that the footwear was counterfeit. Upon complaint by the right holder, a search was executed at the vendor’s warehouse by the Antalya Chief Public Prosecutor’s Office, and hundreds of pairs of counterfeit footwear were seized.
During the proceedings, the vendor claimed to have purchased the goods from a wholesaler under invoice without knowledge of their counterfeit nature. However, the court established the presence of intent, ruling that the purchase price was incompatible with genuine costs and that the vendor breached the duty of commercial prudence. Because the seller failed to demonstrate effective repentance by disclosing the identity and location of the wholesaler to the authorities, a sentence of imprisonment and a judicial fine was imposed pursuant to Article 30/1 of the IPC.
The act of selling counterfeit goods is not limited to criminal proceedings; the trademark owner may also initiate civil actions seeking compensation for material and moral damages suffered. Strict compliance with procedural provisions by both right holders and suspects is of paramount importance during concurrent civil and criminal proceedings; indeed, in this type of litigation, Atty. Med. Billur Güler Aslım emphasizes that the validity of technical expert reports and the legality of search and seizure operations must be rigorously scrutinized.
Intellectual property law imposes formal and stringent requirements for the protection of registered trademarks. Sellers must verify whether goods procured during commercial operations originate from authorized distributors, reject un-invoiced inventory, and refrain from introducing goods carrying risk of trademark infringement into commercial circulation. In a criminal investigation initiated upon complaint, evidence collected non-compliantly with procedure, untimely complaints, or steps taken toward effective repentance directly alter the course of the litigation.
