Trade Secrets and Confidentiality Disputes

We advise Turkish and foreign businesses on both sides of these disputes: holders whose pricing models, customer matrices, formulations or source repositories have walked out of the door, and companies accused of having received them. The distributed structure of the law is the reason the first week matters more than the first hearing.

The opening words of Art. 55/1 TCC deserve attention as well. The listed situations are described as the principal instances: the catalogue is illustrative, not exhaustive. Where the conduct fits no sub-paragraph, the general clause in Art. 54/2 remains available for deceptive conduct and conduct otherwise contrary to the rule of good faith affecting relations between competitors or between suppliers and customers. Our longer note on why there is no separate trade secrets act in Türkiye works through that structure sub-paragraph by sub-paragraph.

A further group sits outside the table but comes up often in practice: the unauthorised exploitation of another’s work product in Art. 55/1(c) TCC. Two separate sub-paragraphs cover exploiting without authority a tender, calculation or plan entrusted to the person, and taking over, by technical means of reproduction, another’s work product that is ready to be marketed, without a suitable contribution of one’s own. Where the material is a tender file, a feasibility calculation, a project drawing or a software module ready for sale, those sub-paragraphs can be a more precise basis than Art. 55/1(d), because the argument then turns not on whether the information qualifies as a secret but on whether the product was entrusted or reproduced.

Two limits in the table are easy to miss. Art. 57/1 TCC allows the actions in Art. 56/1(a), (b) and (c) to be brought against the employer of the person who committed the act; the damages claim in sub-paragraph (d) is not among the actions it lists. That is not an immunity: Art. 57/2 refers the actions in sub-paragraphs (d) and (e) to the Turkish Code of Obligations, so the employer’s liability in damages is argued under the general rules of that Code rather than through the special route in the first paragraph. And Art. 63 TCC applies the criminal provision to the members or partners of the organ acting on behalf of a legal person; the legal person itself faces security measures rather than a sentence.

The internal gradation of Art. 56 shapes the claims as well. Declaration, prohibition and removal of the material situation do not depend on fault; damages fall under sub-paragraph (d), and non-pecuniary damages under the conditions of Art. 58 TCO. The counterpart of the benefit the defendant could have obtained is granted, in the words of the same article, by way of the (d) sub-paragraph as damages, so it is not a fault-free account of profits. The same article allows destruction of the instruments and goods only where that is unavoidable to prevent the infringement, which makes destruction an exceptional outcome, and it lets customers whose economic interests are harmed bring the actions too, without the right to seek destruction.

The duty of secrecy under Art. 396/4 TCO operates by force of law. It requires no agreement, it binds during the employment relationship, and it continues afterwards, but only to the extent necessary to protect the employer’s legitimate interest. That qualification is part of the rule, not a gloss on it, and an employer who pleads an unlimited post-employment secrecy obligation is pleading something the article does not say.

The non-compete under Art. 444 TCO is contractual and much harder to sustain. It must be undertaken in writing, and it is valid only where the employment gave access to the customer circle, production secrets or the employer’s business and the use of that knowledge is capable of causing significant harm. Art. 445 caps the duration at two years save in special circumstances and empowers the judge to trim an excessive covenant instead of voiding it, which is why so many of these covenants survive litigation in reduced form. Art. 447 then removes the restraint entirely where the employer has no genuine interest in maintaining it, or where the employer terminated without just cause or the employee terminated for a reason attributable to the employer. Where a penalty clause is attached, Art. 446/2 lets the employee discharge the restraint by paying it unless the contract provides otherwise, so a covenant intended to prohibit rather than to price the conduct must say so expressly and reserve the right to demand that the conduct stop, as Art. 446/3 requires. Why a one-sided penalty in a non-compete nonetheless survives, and what actually defeats it, is examined in our note on penalty clauses in Turkish non-compete covenants.

Getting these instruments right before anyone resigns is cheaper than litigating them afterwards, which is why confidentiality and restraint terms are drafted as part of the employment contracts and workplace policies we prepare for employers operating in Türkiye.

Those rules set the pace of the whole file:

• Art. 389/1: relief is available where a change in the existing position would make the right significantly harder or impossible to obtain, or where delay would cause a serious disadvantage or loss.
• Art. 390/2 and /3: the court may decide without hearing the other side where immediate protection is required, and the applicant must state the ground and type of measure and prove the merits approximately, not conclusively.
• Art. 391/1: the measure may be an order to do or refrain from doing something, which is what a use-and-disclosure freeze requires.
• Art. 392/1: security is the rule; the court may dispense with it, stating its reasons expressly, where the application rests on an official document or other conclusive evidence, or where the circumstances so require.
• Art. 397/1: where the injunction was granted before proceedings, the main action must be filed within two weeks of the date enforcement was requested, or the measure lapses automatically.
• Art. 398/1: breach of the measure is punishable, on complaint made within six months of discovery, by disciplinary detention of up to six months.

Before any of that, the evidence has to exist. Art. 400 HMK allows preservation of evidence where the material would otherwise be lost or become significantly harder to adduce, and Art. 401/2 expressly reserves notary fact-determination under Notary Law No. 1512, the practical route where the material sits on a website or a marketplace listing that can be edited within hours of a warning letter.

What we do in each case is the same: establish what the information is and how it was protected, pick the statutory route that fits the facts, secure the evidence before the other side knows, and use the interim stage, where Art. 390/3 asks only for approximate proof, to stop the use while the merits are decided.