Unregistered Design Protection in Türkiye: Three Years, the Copying Requirement and Interim Relief (SMK Arts. 59/2, 69/2, 159)

The right is real but narrow: it bites only where the design has been copied, and an independent designer who could not reasonably have known of the earlier disclosure is outside it.

An unregistered design is protected in Türkiye for three years from the date it is first made available to the public, and only where that first disclosure happened in Türkiye. Within those three years the right is narrower than a registration: under Article 59/2 of Industrial Property Law No. 6769 it prevents third-party use only where the design has been copied, and the same paragraph expressly excludes a design created independently by a designer who could not reasonably have known of the earlier disclosure.

That combination — a short clock, a territorial condition on how the clock starts, and a copying requirement the claimant carries — explains why unregistered protection is better understood as a safety net than as a strategy. It is genuinely useful for seasonal ranges, samples shown to buyers, and products whose commercial life is shorter than a registration process. It is a poor substitute for a filing where the product will still be selling in year four. The broader filing picture is set out on the industrial design protection page and, more generally, under intellectual property.

The three-year clock, and what starts it

Article 55/4 of the Law draws the whole distinction in a single sentence: a design is protected as a registered design where it has been registered under the Law, and as an unregistered design where it has been made available to the public for the first time in Türkiye. The territorial words are doing real work. A range shown first at a European fair and only afterwards in İstanbul does not pick up the Turkish unregistered right through the later showing, because the first disclosure was elsewhere.

What counts as making a design available to the public is defined in Article 57/1: exhibiting, placing on the market by means such as sale, use, description, publication, promotion or similar activities. The second sentence of the same paragraph carves out the obvious exception — disclosure to a third party under an obligation of confidentiality is not disclosure to the public. A design shown to a buyer under a signed non-disclosure agreement therefore does not start the clock, which cuts both ways: the design stays unpublished, but no unregistered right arises either.

Article 69/2 supplies the term: three years from the date of first disclosure. The renewal machinery in the rest of Article 69 speaks only of design registrations, so there is nothing to renew and no extension to apply for. The three years run silently, and they run from disclosure rather than from the day the owner discovers a copy.

Novelty and individual character are assessed at the same moment. Article 56/4(b) treats an unregistered design as new if the identical design was not made available to the public anywhere in the world before the date of first disclosure — with designs differing only in minor details treated as identical — and Article 56/5(b) applies the informed-user overall impression test as at that same date. Article 56/6 then requires the degree of freedom of the designer to be taken into account, which is why crowded product categories produce narrow rights.

The copying requirement, stated honestly

Article 59/1 lists what a design owner can stop: producing, placing on the market, selling, importing, using for commercial purposes, holding for those purposes, or offering to contract in relation to the product. Article 59/2 then narrows all of it for unregistered designs. The right to prevent those acts is given only where the identical design, or one not distinguishable in overall impression, has been obtained by copying the protected design. And the following sentence removes the case that most defendants will run: a design made independently by a designer who could not reasonably have known that the protected design had earlier been made available to the public is not deemed to have been copied.

The practical consequence is that similarity alone does not win an unregistered design case. Evidence of access does much of the work — a sample sent to the defendant, a prior supply relationship, a shared factory, a catalogue that demonstrably circulated in the trade before the defendant’s launch. The Law reflects this: under the second sentence of Article 59/2, a design created independently by a designer who could not reasonably have known that the protected design had been made available to the public earlier is not regarded as copied. The claimant must also show that it was the first to disclose the shape in Türkiye (Article 55/4) and that the shape was new and had individual character at that date (Article 56/4(b) and 56/5(b)); if the shape was already circulating in the market before that date, those conditions are not met.

Two further limits belong in the same honest account. Article 58/4 keeps features solely dictated by the technical function of the product, and must-fit interconnection features, outside protection altogether, whether or not the design is registered. And Article 59/3 places private non-commercial acts, experimental acts, and reproductions for teaching or citation purposes outside the right — the last of these only where the use is compatible with fair practice in trade, does not unduly prejudice the normal exploitation of the design, and acknowledges the source.

A second three-year period appears in the same article and should not be confused with the first. Article 59/4 provides that using a component part on which the appearance of a complex product depends, for the purpose of repair to restore the product’s original appearance and without misleading as to its origin, is not an infringement three years after the product was first placed on the market. That period concerns the spare-parts market and applies to registered designs as well; it says nothing about how long an unregistered design lasts.

Trade fairs: exhibition priority and the grace period

A fair is where unregistered protection is most often invoked, and it is also where the Law offers something better. Under Article 62/5, a person who displays the design, or the product to which it is applied, at a national or international exhibition held in Türkiye, or at an official or officially recognised international exhibition held in a Paris Convention or WTO member state, enjoys a six-month priority for filing in Türkiye counted from the date of display. Article 62/6 moves that starting point earlier where the product was visibly displayed before the official opening date. Article 62/7 resolves competing filings in favour of the person who first placed the product in the exhibition, or, where products were placed simultaneously, the first to apply.

Two conditions are easy to miss. Article 63/1 requires the priority claim to be made with the application and the supporting documents to reach the Office within three months of the application date, failing which the claim is treated as not made. And Article 63/4 states plainly that exhibition priority does not extend the six-month priority period arising under Article 62/1. That earlier paragraph is a different priority: under Article 62/1, nationals of a Paris Convention or WTO member state, and persons with a domicile or an operating commercial establishment in one of them, together with their successors in title, enjoy six months’ priority for filing the same design in Türkiye counted from a design or utility model application duly made in any of those states; the priority lapses if it is not used within that period, and a priority document from the authority of the first filing state is required. The two priorities share the same six months rather than running consecutively. Article 62/5 also confines exhibition priority to the persons defined in Article 3 of the Law.

Separately, Article 57/2 gives a twelve-month grace period: disclosure within the twelve months preceding the application or priority date, by the designer, a successor in title, an authorised third party, or as a result of an abuse of the relationship with them, does not affect novelty or individual character. This grace period protects a later registration; it does nothing to extend the three-year unregistered term. Read together, the two provisions say something useful: showing a design at a fair starts a three-year unregistered clock and still leaves twelve months in which to convert the design into a registration.

Interim relief: what Article 159 requires

Article 159/1 allows a person entitled to sue under the Law to apply for an interim injunction, on proof that the use complained of is taking place within the country in a manner infringing the applicant’s industrial property rights, or that serious and effective preparations are being made for it. Article 159/2 sets out the measures the court can order: prevention and cessation of the infringing acts; seizure and safekeeping of the infringing products and of the means used exclusively in their production, wherever they are found, expressly including customs areas, free ports and free zones, provided that production of other goods is not obstructed; and the provision of security against damage. Article 159/3 refers everything the Law does not regulate to the Code of Civil Procedure No. 6100.

Standing is not an obstacle: Article 81/4 provides that, for unregistered designs, once the design has been made available to the public in accordance with Article 57, the right holder is entitled to bring proceedings for infringement. The obstacles are evidential and procedural, and they carry deadlines that catch applicants out more often than the substantive test does.

Breach of an injunction is separately sanctioned: Article 398/1 of the Code of Civil Procedure provides for disciplinary imprisonment of up to six months, on a complaint made within six months of the breach becoming known.

Claims, courts and the parallel routes

The substantive claims are the general industrial property ones in Article 149: a declaration of infringement, prevention of threatened infringement, cessation, removal of the infringement with compensation for pecuniary and non-pecuniary loss, seizure of the infringing goods and of the machinery used exclusively to make them, transfer of ownership of what is seized, destruction where unavoidable, and publication of the final judgment at the infringer’s expense. Where compensation is claimed, Article 151/2 leaves the method of calculating lost profit to the injured party’s choice: the income it would probably have earned absent the competition, the infringer’s net profit, or a reasonable licence fee. Two ancillary rules are worth noting. Where publication of the judgment is sought, Article 149/3 extinguishes the right if it is not requested within three months of the judgment becoming final. And Article 156/4 supplies the venue for claimants without a domicile in Türkiye: the court of the place where the registered attorney’s business is located, or, where that entry has been removed, the court of the place where the Office has its seat.

There is no criminal route for a design as such. The criminal provision of the Law, Article 30, is confined by its own heading and text to trademark infringement, and the design chapters contain no equivalent. Where a copied product also carries a copied mark, the anti-counterfeiting and customs file proceeds on the trademark, and Article 57 of Customs Law No. 4458 becomes relevant: customs may detain goods on the right holder’s application, or ex officio for three working days where there is clear evidence, and the holder then has ten working days from notification (three for perishables, extendable by up to ten more for good cause) to produce an interim injunction. An unregistered design holder has no registration certificate to lodge with a border application, which is one more reason to file.

The unfair competition route under the Turkish Commercial Code No. 6102 runs in parallel and does not depend on any design right at all. Article 55/1(a)(4) lists, among the principal cases of unfair competition, taking measures that cause confusion with another’s goods, work products, activities or business, and Article 56/1 gives the claimant a declaration, an injunction, removal of the resulting situation, destruction of the means where unavoidable, damages where there is fault, and moral damages on the conditions of the Code of Obligations. Article 56/4 extends the reach of the judgment: an order for an injunction or for removal of the resulting situation is also enforced against persons who obtained the goods from the defendant, directly or indirectly, for commercial purposes — which matters where the copies have already reached distributors. The unfair competition analysis is often pleaded alongside a design claim, though the same evidential problem returns: shapes that have become commonplace in the market are hard to monopolise under either heading.

Finally, where the copier has meanwhile obtained a registration of its own, the answer is an invalidity action rather than an infringement defence. Article 77/1(a) makes a design invalid where it fails the conditions of Articles 56 and 57 — which an earlier public disclosure of the same design will establish — and Article 78/3 allows the action during the protection period or within five years following the end of the design right. Article 78/5 confirms that, for unregistered designs, an invalidity action is brought against the person claiming to be the right holder.

Set against the administrative streamlining now seen elsewhere in the same statute — described in the note on the industrial property paradigm shift — design protection remains court-based, and unregistered design protection remains the weakest form of it. It is worth having, and worth pleading. It is not worth relying on where a registration would have cost less than the evidence needed to prove copying.