When wholesalers and importers place counterfeit goods produced without the consent of the original right holder onto the market for commercial purposes, they incur direct civil and criminal liability pursuant to the Industrial Property Code No. 6769 (IPC). Claiming absence of fault does not relieve them of liability arising from commercial activities. The right holder may demand the seizure and destruction of the goods, as well as compensation for pecuniary and non-pecuniary damages suffered.

Natural or legal persons importing counterfeit products are deemed to have infringed trademark rights due to the counterfeit goods they introduce into commercial circulation and are directly liable under Article 29 of the IPC to pay compensation to the right holder. The fact that the products were manufactured abroad on a contract basis or that they are lawful in the country of origin does not exempt the importer from legal liability in Turkey.

At the intersection of customs legislation and intellectual property law, an import transaction is completed once the goods clear the customs line and enter free circulation. Because an importer holds the merchant status, they are under an obligation to act as a prudent businessperson. This obligation encompasses the duty to verify whether the imported goods infringe a registered trademark. Presenting a certificate of origin or an invoice does not eliminate civil liability arising from the import of counterfeit products.

In actions that may be brought by the trademark owner, the sanctions that may be enforced against the importer are as follows:

  • Determination, prevention, and cessation of the infringement,
  • Seizure and destruction of counterfeit products held at customs or in warehouses,
  • Recovery of pecuniary and non-pecuniary damages, as well as damages for loss of reputation.

Do wholesalers face criminal penalties if they unwittingly sell counterfeit products?

The sale of counterfeit goods procured from the market by wholesalers, even if they claim lack of knowledge, may expose them under Article 30 of the IPC to imprisonment from 1 to 3 years and a judicial fine of up to twenty thousand days. In criminal proceedings, a failure to examine the authenticity of the goods in breach of the merchant’s duty to act prudently directly impacts the assessment of fault.

In the context of criminal liability, the element of intent (acting knowingly and willfully) is required for the commission of the offense. However, the procurement of uninvoiced goods by wholesalers at prices significantly below market rates introduces issues of indirect intent (dolus eventualis) or negligence during legal proceedings. If the wholesaler cannot prove where the goods were obtained using an official commercial invoice and dispatch note, they are situated as the primary perpetrator who introduced counterfeit goods of indeterminate origin onto the market.

Under the general provisions of the Turkish Penal Code No. 5237 and Article 30/2 of the IPC, a person who offers for sale or sells counterfeit goods may benefit from immunity or active remorse provisions if they identify where they procured the goods and enable the identification of the seller. Concealing the source or transacting with fraudulent invoices aggravates the wholesaler’s criminal liability.

How do customs seizure procedures operate in the trade of counterfeit goods?

During the passage of counterfeit goods through customs gates, the customs administration immediately suspends clearance of the suspicious goods either ex officio or on the basis of a prior intellectual property rights notification made by the right holder, notifying the parties. If the importer cannot prove the authenticity of the goods, or if a suspension injunction by a court order becomes finalized, the goods are not permitted entry into free circulation.

Under Customs Law No. 4458, customs administrations have the authority to interdict goods that infringe registered trademarks at the border. Trademark owners ensure protection of their trademarks during customs clearance processes by filing an intellectual property protection application through the Ministry of Trade portal. Upon detection of a suspicious shipment, customs officials retain the goods to provide the right holder an opportunity to examine them.

The process proceeds through the following stages:

  1. The customs administration temporarily retains the goods suspected of being counterfeit.
  2. Notice is served to the right holder and the importer, triggering the statutory time limit.
  3. The right holder obtains an interlocutory injunction (temporary judicial relief granted in urgent circumstances) from the competent court within the designated period.
  4. If the interlocutory injunction is not submitted to the customs directorate, customs procedures regarding the goods continue under the applicable regulations.

The authenticity examination of goods seized at customs is generally conducted through samples by expert witnesses.

What damages can the trademark owner claim from the wholesaler and importer?

A right holder whose trademark has been infringed is entitled to claim pecuniary damages, non-pecuniary damages, and damages for dilution of the trademark’s commercial reputation against the wholesaler and the importer. Pecuniary damages under Article 151 of the IPC are determined based on the right holder’s lost profits through one of three elective methods.

In calculating lost profits, the plaintiff trademark owner must choose one of the following three methods:

  • The probable income the right holder would have generated had the competition from the wholesaler or importer trading in counterfeit goods not existed,
  • The net profits generated by the defendant who marketed the counterfeit goods from such sales,
  • The hypothetical license fee the infringer would have had to pay had they used the trademark under a lawful licensing agreement.

Damages for loss of reputation constitute an additional remedy awarded when the market standing of the registered trademark is tarnished because the counterfeit goods were manufactured from poor-quality, defective, or harmful materials. Importers and wholesalers can be held jointly and severally liable within a chain of distribution.

Which court has subject-matter and territorial jurisdiction over counterfeit product lawsuits?

In civil and criminal actions concerning trade in counterfeit goods, the courts possessing subject-matter jurisdiction are the Civil Courts for Intellectual and Industrial Property Rights and the Criminal Courts for Intellectual and Industrial Property Rights. In judicial districts where these specialized courts have not been established, the Civil Courts of General Jurisdiction and Criminal Courts of General Jurisdiction designated by the Council of Judges and Prosecutors have jurisdiction.

Regarding territorial jurisdiction, the plaintiff may bring an action before the court where the infringement occurred, where the damage materialized, or where the defendant is domiciled. For example, if the distribution or customs clearance of counterfeit goods occurred within the borders of Antalya, the Antalya Civil Court for Intellectual and Industrial Property Rights has subject-matter and territorial jurisdiction over the dispute.

Before filing a civil claim, mandatory commercial mediation as a prerequisite for litigation must be satisfied. Because disputes between wholesalers and importers are commercial in nature, an application to mediation is mandatory prior to initiating litigation for monetary claims. If no settlement is reached during mediation, the final mediation protocol must be annexed to the complaint.

What are the most common mistakes wholesalers and importers make in commercial transactions?

The most common mistake wholesalers and importers make in practice is assuming that obtaining a written guarantee or an invoice from the supplier extinguishes all legal liability. The existence of an invoice does not alter the counterfeit nature of the goods, and procuring uninvoiced or heavily discounted goods without conducting market due diligence completely undermines a defense of good faith.

Critical measures commercial enterprises must observe to avoid facing infringement claims include:

  • Failing to audit suppliers: Making bulk purchases from intermediaries whose reliability is unverified without requesting authorization certificates or distribution agreements,
  • Omitting comparative market price checks: Disregarding the risk of counterfeiting for goods offered well below original list prices,
  • Failing to verify intellectual property registrations: Neglecting to verify the current registered proprietor and the scope of protection through TURKPATENT registry records,
  • Failing to establish contractual protections: Omitting warranty against defects (the seller’s liability for non-conformity) and indemnity/recourse provisions against IP infringements (the right to seek reimbursement from the primary wrongdoer) in procurement contracts.

How are discovery of evidence and search warrants executed in counterfeit product investigations?

To prevent counterfeit goods located in wholesalers’ warehouses or import facilities from being concealed or destroyed, the trademark owner petitions the court for discovery and preservation of evidence, or requests a search and seizure warrant from the magistrate judge in criminal proceedings. In civil actions, existing stock is officially inventoried via an inspection conducted alongside an expert witness, while in criminal investigations, law enforcement officers seize the goods into judicial custody.

Petitions for preservation of evidence are examined urgently under the Code of Civil Procedure No. 6100 and may be executed ex parte. During this inspection, the court panel or appointed experts examine the wholesaler’s commercial books, inventory records, purchase orders in computer systems, and physical stock in the bonded warehouse. To prevent destruction of evidence, the court may order the sealing of the warehouse and the delivery of the goods to an escrow agent (custodian) under an interlocutory injunction.

In centers with intensive tourism and commerce such as Antalya, inspections conducted in wholesale textile, cosmetics, and leather sectors are executed by cross-referencing serial and lot numbers in warehouses against customs declarations. The formal inventory protocol serves as the primary instrument of proof in subsequent civil damages claims and criminal proceedings.

Hypothetical Scenario

The following case is illustrative. An importer who purchases athletic shoes abroad at one-third of their market value introduces them into the domestic market and transfers them to a local wholesaler. The wholesaler distributes these goods to retailers. Upon discovering this, the registered trademark owner applies to the court for an interlocutory injunction and preservation of evidence. An expert inspection reveals the shoes to be exact counterfeits. In this scenario, the right holder can file an action for joint and several damages against both the importer and wholesaler, demanding the seizure and destruction of all warehouse stock, alongside recovery of lost profits. The wholesaler’s reliance on an invoice does not negate their liability; it merely creates a right of recourse to claim the purchase amount paid to the importer.

Frequently Asked Questions

What is the statute of limitations in counterfeit goods litigation?

Two years: the right holder must file an action within 2 years from the date they become aware of the infringing act and the identity of the infringer, and in any event within 10 years from the date the act was committed. If the criminal code prescribes a longer statute of limitations for the act, the longer criminal limitation period applies to the civil claim.

Does a wholesaler incur liability if an unregistered trademark is counterfeited?

Yes, liability arises; even if unregistered trademark use does not enjoy statutory protection under the IPC, it constitutes unfair competition under the provisions of the Turkish Commercial Code No. 6102. The right holder has standing to bring an action against the wholesaler for the determination, prevention, and cessation of unfair competition, as well as for compensatory damages.

Who pays storage and destruction costs when counterfeit goods are seized at customs?

The importer pays; all costs regarding storage, preservation, and subsequent destruction resulting from the detention of counterfeit goods in customs bonded warehouses are assessed against the importer under tort liability. If the right holder paid these expenses upfront, they may recover them from the importer via recourse action.

Can a wholesaler escape civil liability by returning counterfeit goods to the supplier?

No, they cannot; returning counterfeit goods to the supplier does not remedy the trademark infringement that has already occurred. Because the mere possession of the product in a commercial establishment constitutes an infringement, the right holder reserves the right to claim retrospective damages and file a criminal complaint.

References

  • Industrial Property Code No. 6769
  • Turkish Commercial Code No. 6102
  • Turkish Penal Code No. 5237
  • Customs Law No. 4458
  • Code of Civil Procedure No. 6100

This article is for general informational purposes only; outcomes may vary depending on the specific circumstances of the case.

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