See the answer to question 5 in relation to injunctions. In addition, where the provisional measure claimed in the action on the merits of the case, the judge of that case may refer the claim to another local court if he believes that the ruling shall be taken there more imminently and less costly (Article 104/3 of the Act of Civil Procedure). Where the provisional measure ruling taken before the action on the merit of the case, the applicant for the provisional measure shall have to bring an action on the merits of the case in l0 days from that ruling. Otherwise the ruling directly loses its effect without the requirement of any decision (Article l09 of the Act of Civil Procedure). In order to prevent the abuse of the provisional measures, the judge has the authority to order the applicant to provide an adequate security to compensate the injury caused to the defendant or to a third party (Article ll0 of the Act of Civil Procedure). However, if the defendant provides a security after the acceptance of a provisional measure the judge may change the measure or even repeal it (Article 111 of the Act of Civil Procedure). A person who prevents the execution of the ruling on the provisional measure shall be imprisoned from 1 month to 6 months by the criminal court (Article ll3/2 of the Act of Civil Procedure).
[Answer 5: General principles for injunctions have been inserted in Articles 101-113 of the Act of Civil Procedure. In addition to making a reference to the Act of Civil Procedure, industrial property legislation contains special provisions on the issue (Articles 151 and 152 of the Patent Decree, Articles 63 and 64 of the Design Decree, Articles 34 and 35 of the Geographical Indications Decree, and Articles 76 and 77 of the Trade Marks Decree). Injunctions may be claimed before or during the proceedings on the merits of the case or after the case. The purpose of injunctions is: - cessation and prevention of the infringing acts; - provisional seizure of the infringing goods. The copyright and related rights legislation has also reiterated the same rules in a special provision (Article 77 of the Intellectual and Artistic Property Act) indicating: - the provisional seizure of the infringing goods and devices used to produce pirated goods. - the injunction which orders the person to do certain acts or refrain from doing certain acts. Apart from this special provision in Article 81/3, the Act recognizes the right of Intellectual Property Associations to apply for injunctions in relation to infringing goods and devices. The application shall be forwarded to the public prosecutor and the decision shall be taken by the court. Nevertheless, in urgent situations, where the delay will cause irreparable harm, the prosecutor himself will take the decision on provisional seizure. In such a situation, the decision of the public prosecutor should be presented for approval by the court within three days (Article 81/4 of the Intellectual and Artistic Works Act). Damages, including recovery of profits, and expenses, including attorney's fees Damages actions require the injuring party to have acted intentionally or negligently (Article 41 of the Act of Obligations). The industrial property legislation describes the damages and the mode for the calculation for recovery of profits in the Decrees. (Articles 138-140 of the Patent Decree, Articles 50, 52 and 53 of the Design Decree, Articles 64, 66 and 67 of the Trade Marks Decree.) The Decree on the Geographical indications includes only damages (Article 26). The Intellectual and Artistic Property Act proposes damages in case of infringement of both moral and financial rights (Article 70). Pursuant to Articles 413-426 of the Civil Procedural Act, the losing party must pay the costs (Article 417), which include attorney's fees (Article 423/5) , unless the judge decides otherwise. However the Act goes further and imposes an administrative fine (Article 422) to the defendant if he commits the infringement with bad intention. This is also relevant for bad intentioned plaintiff regarding bringing an action. In accordance with Article 32 of the International Private Law and the Procedural Law Act, foreigners who bring an action in Turkey should give security to the court as cautio judicatum solvi for the defendant's costs. It is a caution for a successful defendant's costs and it stays free when the plaintiff wins the case. Nevertheless since Turkey is a party2 to the l954 "The Hague Convention on Civil Procedure", Turkish courts have not ordered this payment from foreign plaintiffs who are resident in, and nationals of one of the States parties to the Convention. Destruction or other disposal of infringing goods and materials In the light of Articles l37, 49, 25 and 62 of the Patent, Design, Geographical Indication and Trade Marks Decrees, respectively, the intellectual property right owner may appeal for : - proprietorship over infringing goods (in such case the value of the products shall be deducted from the damages awarded); - the destruction of the infringing goods and material; - the confiscation of infringing goods. Article 79 of the Intellectual and Artistic Works Act has provided the same opportunity to the right owners regarding pirated goods and materials used to produce them Any other remedies Pursuant to the Articles indicated in the above paragraph, right owners may request the disclosure of the judgement by means of media. In such cases the cost of this implementation shall be born by the offending party.]