5.  The applicant is a media company with its registered office in Ankara.
6.  On 5 November 1998 Kamoy Araştırma Siyasi Danışmanlık ve Yayıncılık A.Ş. (hereinafter “Kamoy Araştırma”), a company affiliated with the applicant company, applied to the Turkish Patent Institute (Türk Patent Enstitüsü) for registration of the trademark “Özlenen Gazete Vatan, Günlük Siyasi Gazete” (Homeland: The newspaper we longed for). On 5 November 1998 the trademark was registered in the name of the company for a period of ten years.
7.  In February and March 1999 Kamoy Araştırma published a newspaper entitled Özlenen Gazete Vatan. In March 1999 it halted the publication of the newspaper owing to financial reasons.
8.  On 4 September 2002, Bağımsız Gazetecilik Yayıncılık A.Ş. (hereinafter “Bağımsız Gazetecilik”), another company operating in the media sector, began publishing a newspaper called Vatan.
9.  On 22 October 2002, Kamoy Araştırma brought a case against Bağımsız Gazetecilik before the Istanbul Intellectual Property Court, requesting the suspension of the latter’s use of its registered trademark, which according to it constituted unfair competition. It argued, inter alia, that the other party was using the same name for the same product, namely a newspaper, without having obtained any prior permission, despite the fact that it had the rights to the registered trademark which needed to be protected pursuant to Legislative Decree no. 556 on the Protection of Trademarks.
10.  During the course of the proceedings the trademark was transferred to the applicant company, which subsequently became a party to the proceedings.
11.  On 18 August 2003 an expert report assessing both parties’ rights as regards the name at issue was submitted to the court. It noted that while the applicant company had indeed registered the name “Vatan”, which was common to both newspapers, Bağımsız Gazetecilik had the “declaration of intention to publish a periodical” (mevkute beyannamesi – hereinafter “declaration of a periodical”) dated 1974, which allowed it to publish with that name. The report pointed out that the newspaper Vatan had been published since 1975 and that the name had become recognisable long before the applicant company had applied for registration. In that connection, the report noted that in view of the last paragraph of Article 7 of Legislative Decree no. 556, which made reference to the recognisability of a trademark, it should be accepted that it was Bağımsız Gazetecilik that had actually made the name a recognised brand. It concluded accordingly that the Patent Institute should have refused the applicant company’s request for registration pursuant to Article 7 of Legislative Decree no. 556.
12.  On 27 January 2004 the Istanbul Intellectual Property Court dismissed the applicant company’s claim. The court noted that the newspaper Vatan, the rights to which had been transferred to Bağımsız Gazetecilik in 2002, had been published since 1975. In line with the findings of the expert report, it held that the name “Vatan” had become well-known as a newspaper prior to the applicant company’s application for its registration as a trademark and that the applicant company, whose application should actually have been rejected by the Patent Institute, could not be considered to have brought the case in good faith. The court furthermore stated that in any event the use of the name by the defendant party was protected by section 31(2) of the Turkish Patent Institute Act (Law no. 5000 on the Establishment and Duties of the Turkish Patent Institute), which had come into force on 6 November 2003 during the course of the proceedings and set forth that those who publish periodicals could not be prevented from doing so on the basis of Legislative Decree no. 556.
13.  The applicant company appealed against the judgment. It argued that the “declaration of a periodical” mentioned in the expert report was simply an official recognition of an application to publish a periodical and did not have any priority over a registered trademark. Noting that its rights to the trademark at issue were still valid, it argued that Turkish law provided for the absolute protection of a registered trademark. The applicant company also challenged the application of section 31(2) of the Turkish Patent Institute Act to its case, stating that the said regulation had entered into force after it had lodged its case. It argued that the provision did not have a legitimate aim and paved the way for everyone to publish newspapers with the same name.
14.  On 6 May 2005 the Court of Cassation upheld the judgment on the basis of the second reasoning relied on by the Intellectual Property Court. The appellate court pointed out that according to the additional paragraph of Article 7 of Legislative Decree no. 556, the application for the registration of a trademark which had previously been recognisable – in this case, the application for registration lodged by the defendant party (see paragraphs 18-23 below) – could not be rejected. It found that despite that provision, since the applicant company had already registered the trademark, it would have priority over an unregistered trademark, albeit a recognisable one. Accordingly, the appellate court concluded that the first reasoning of the court, which gave priority to the unregistered trademark, could not be accepted. It noted, however, that the case should in any event be dismissed pursuant to section 31(2) of the Turkish Patent Institute Act.
15.  The applicant company applied for rectification of that judgment, arguing that the retrospective application of section 31(2) of the Turkish Patent Institute Act put the other party in a privileged position. In that connection, it maintained that had the Intellectual Property Court ruled on its case within one year of it having been lodged, it would have been able to prevent the unlawful use of its trademark.
16.  On 28 October 2005 the Court of Cassation rejected the applicant’s rectification application.
17.  On 31 January 2008, in examining the matter in relation to a separate case, the Turkish Constitutional Court annulled section 31(2) of the Turkish Patent Institute Act, finding that it did not comply with Article 35 of the Constitution, which guaranteed the right to property. After having established that a trademark constituted a possession, the Constitutional Court stated that Legislative Decree no. 556 was aimed at protecting registered trademarks from unlawful interferences and that the provision at issue made it impossible to exercise that protection as regards unlawful interferences which had already started by its entry into force. It concluded accordingly that such a restriction of trademark rights, which resulted in the protection of unlawful acts, was not in the public interest.
18.  On 24 September 2002 Bağımsız Gazetecilik applied for the registration of the name “Vatan” as a trademark. The Patent Institute rejected the application on account of the already existing registration in the applicant company’s name.
19.  On an unspecified date Bağımsız Gazetecilik objected to the decision of the Patent Institute.
20.  On 8 December 2003 the Patent Institute imposed a provisional measure on the trademark, restricting its transfer to third parties.
21.  On 7 February 2005 the Patent Institute accepted the objection of Bağımsız Gazetecilik and decided to register the name “Vatan” in its name for publishing services.
22.  In the meantime, on 2 April 2004 Bağımsız Gazetecilik had initiated proceedings against the applicant company for the annulment of the latter’s registered trademark.
23.  On 17 February 2005 the Ankara Intellectual Property Court ruled that the registration in the name of the applicant company be declared void, finding that Vatan had become well-known as a newspaper before the applicant company’s registration. The court also held that the applicant company had not used the trademark for a period of five years, which was a reason for annulment of a trademark under Article 14 of Legislative Decree no. 556. That judgment became final by a decision of the Court of Cassation on 12 June 2006.
24.  On 11 August 2006 the trademark for the name “Vatan” was registered in the name of Bağımsız Gazetecilik.
25.  On 9 November 2006 the applicant company’s trademark registration was removed from the register of the Patent Institute.