The Increasing Significance of the Bad Faith Element in Trademark Oppositions

In recent years, the “bad faith” element in oppositions against trademark applications has gained increasing recognition and weight in both national and international case law. Notably, in Turkey, a significant rise has been observed in the acceptance rates of bad faith-based oppositions before the Turkish Patent and Trademark Office (TÜRKPATENT). This development reflects not merely a procedural shift but also a stricter approach in intellectual property law towards ethical principles, commercial fairness, and preventing the abuse of rights.

Legal Foundations of the Bad Faith Concept

Article 6 of the Turkish Industrial Property Law explicitly provides that oppositions against trademark applications filed in bad faith may be taken into consideration. However, the noteworthy point is that “bad faith” is not directly defined and must be interpreted according to the circumstances of each case. In practice, the concept is materialized through criteria such as violation of commercial customs, intent to benefit from another’s commercial reputation and recognition, and behaviors incompatible with the principle of honest use.

At this juncture, the case law of the European Union Intellectual Property Office (EUIPO) and the European Court of Justice (ECJ) also serves as guiding authority in Turkish law. For instance, the Lindt judgment (C-529/07) established that a trademark application filed in bad faith is not only considered unfair competition but also an act threatening the integrity of the system as a whole.

Recent Decisions and Trends

Numerous decisions issued by TÜRKPATENT in 2023 and 2024 indicate that allegations of bad faith are being examined more rigorously and accepted at higher rates. Notably, a significant increase in the acceptance of bad faith claims has been observed in the following circumstances:

• Attempts by third parties to register well-known or foreign-registered trademarks identically or similarly in Turkey

• The existence of current or past commercial relationships (such as dealership, distributorship, or supply agreements) among the relevant sector players

• Applications aimed at systematically blocking the trademark owner’s market entry or hindering their business operations

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These developments have become particularly pronounced in certain sectors. In industries where consumer trust and brand loyalty are high and the product/brand association is vital, bad faith trademark applications are more frequently raised and are often upheld by the authority. Key sectors affected include:

Food and Beverage Sector

Consumer loyalty and reliability play a decisive role in purchasing decisions related to food brands. Therefore, food brands with specific attributes such as natural, organic, or vegan qualities are often targeted by bad faith applications. Marks of small producers that gain visibility in local chain stores are subsequently subject to attempts by third parties to register similar logos and names. Additionally, foreign food products whose trademarks are not yet registered in Turkey are opportunistically targeted by others filing applications, attempting to unjustly profit by leveraging existing consumer trust in the market.

Cosmetics and Personal Care Products

In this sector, a brand is perceived as a direct representation of product quality. Applications that replicate foreign cosmetic brands’ names identically or phonetically are common bad faith scenarios. Notably, cases where former distributors file applications to register the trademarks of their previous business partners have drawn attention. As of 2024, the acceptance rate of bad faith oppositions in this field has significantly increased.

Pharmaceuticals and Medical Products

Since drug names are usually distinctive, trademarks in this area are closely linked to recognition in the healthcare sector. Bad faith applications related to over-the-counter (OTC) products, vitamin supplements, and medical devices are often seen as deliberate attempts to manipulate consumer perception. In recent years, TÜRKPATENT has increasingly identified and rejected such applications at earlier stages.

Baby and Child Products

Consumer trust-driven purchasing behavior strengthens brand loyalty in this category, making these marks attractive targets for bad faith actors. It is common to see exact copies of foreign-origin brands in categories such as baby formula, baby cosmetics, and hygiene products. Due to the rise in deceptive applications targeting consumers on e-commerce platforms, the authority conducts more sensitive evaluations in this sector.

Tobacco and Alternative Nicotine ProductsDue to strict regulations limiting market entry, trademarks for tobacco and tobacco-substitute products are frequently targeted by opportunistic applicants. Particularly, waves of bad faith applications have been observed for internationally known but not yet registered tobacco brands in Turkey, causing confusion in the market.

Fashion, Footwear, and Accessories Sector

Exact copying of well-known luxury brands or registration attempts for newly emerging design brands in the local market have become chronic issues in this sector. The originality of designer brands increases their legal and commercial value, making them vulnerable to bad faith registration attempts. Recently, TÜRKPATENT has begun to adopt EUIPO-like approaches by scrutinizing the commercial intent behind bad faith filings.

Software and Digital Services

Although not as visible as physical product manufacturing, trademark applications for software platforms and mobile apps are also subject to bad faith attempts. Rapid market attention to a newly launched software product often leads to attempts by others to quickly register its name. Especially where these applications are not supported by patent or copyright protections as part of a broader trademark strategy, the risk of bad faith registrations increases significantly.

International Reflections and WIPO Trends

The bad faith element is increasingly referenced in disputes handled by WIPO. Particularly, similar interpretive methodologies are being developed for bad faith findings in UDRP (Uniform Domain-Name Dispute-Resolution Policy) decisions regarding domain name allocations. Moreover, some countries have moved to explicitly regulate bad faith in their domestic laws. For example, China’s 2020 legislative amendments allow for the outright rejection of applications filed without legitimate commercial intent or in bad faith.

Conclusions from a Trademark Strategy Perspective

The increasing acceptance of bad faith elements creates both opportunities and risks for trademark owners. On one hand, it enables companies whose commercial reputation is being exploited to more effectively defend their rights through oppositions. On the other hand, it necessitates greater diligence and transparency from both consulting firms and applicants during the trademark application preparation process.

In this context, it is especially important for brands operating in the sectors mentioned above to develop more systematic pre-filing research and monitoring (watching) strategies. These sectors are more vulnerable to bad faith applications due to fast consumer habits and relatively low market entry barriers.

Assessment and Recommendations

In light of recent developments, trademark applicants are advised to:

• Support their applications with concrete documents regarding their intention to use the mark and their commercial planning,

• Avoid initiatives that could be perceived as unethical in the context of existing relationships within the sector (such as competition, partnerships, distributorships),

• Refrain from filing applications that resemble trademarks already registered abroad.

It is no longer a luxury but a necessity that legal representatives, during pre-filing preliminary examination processes, not only conduct similarity searches but also assess the ethical foundations of the application and potential opposition scenarios.