1. Dr. Özlem Döğerlioğlu Işıksungur Notes
COMMERCIAL LAW
Dr. Özlem Döğerlioğlu Işıksungur
Notes

2. ENTERPRISE Capital Labor Entrepreneur Organisation Specific purpose
Craftsman enterprises are not accepted as commercial enterprise.

3. DEFINITION of ENTERPRISE
Article 11 of TCC
“An enterprise that will be operated permanently and independently aiming to generate income which exceeds the limit prescribed for the craftsman enterprises.”

4. COMMERCIAL ENTERPISE
Commercial Provisions are applied to Commercial Affairs
Commercial Interest for the Commercial Affairs.
Affairs related to Commercial Enterprise, Commercial Affair
Application of commercial customs for the commercial affairs
The case is “commercial case” if it is concerning both parties’ enterprises
The person who operates the commercial enterprise, in principal, MERCHANT
First: Check whether there is a “commercial enterprise or not” If the answer is yes, then above mentioned results 4

5. ELEMENTS OF “COMMERCIAL ENTERPRISE”
There are four components of commercial enterprise:
Economic activity-
It must be “generate income oriented”
It must be continuous
It must be independent
Its scope must exceed the craftman’s scope of activities

6. ELEMENTS: 1-Economic Activity
The main purpose and objective of commercial enterprise must be to generate income.
What should be taken into consideration?
Purpose/Intention of the entrepreneur is of importance
Result is not of importance (to profit or to lose money).
Way of income spending is not of importance
Legal status of the person who operates enterprise is not of importance
Doctor/Engineer

7. ELEMENTS: 2-Continuity
Commercial enterprise must have been established to operate continuously (not temprorary or fortuitous).
What should be taken into consideration?
Intention and nature of the undertaking
Disruption of the operation?
Periodical activities?
Running school buses for the students during the periods when the schools are open
Operating hotels in winter

8. ELEMENTS: 3-Independency
The organisation must be independent from any other
Independency for entrepreneur& enterprise
Branches?
Agency?

9. ELEMENTS:4- Exceeding of the craftman’s scope of activities
Distinction concernig whether an enterprise is a commercial enterprise or craftsman enterprise shall be made according to the Council of Ministers Decree

10. Craftman
Article 15 of TCC

11. Structure of Commercial Enterprise
Human--- Merchant
Person who operates commercial enterprise on his name
Assets---- TCC Article 11.3

12. Head office- Branch

13. CONCEPT A merchant has a commercial enterprise. BUT
Kaynak: Sami Karahan, Ticari İşletme Hukuku 2011
A merchant has a commercial enterprise. BUT
A merchant may have more than one commercial enterprises
To have more client
To give better service or .....
The relationship between/among these commercial enterprises
Independent from each other OR
Dependent (Head Office – Branch)

14. HEAD OFFICE IN TURKISH LAW
Every commercial enterprise must have a head office (principal place of business)
It is generally accepted that head office is the place from where all commercial, administrative and legal affairs of commercial enterprise are organised and conducted.

15. HEAD OFFICE IN TURKISH LAW
Commercial enterprises operated by a real person---- head office can be different from the residence(domicile) of real person
Commercial enterprises operated by a legal person---- head office is the place mentioned in the articles of association/charter

16. BRANCH To qualify as a Branch : The unit
Kaynak: Sami Karahan, Ticari İşletme Hukuku 2011
To qualify as a Branch :
The unit
should be dependent to Head Office
Head office and branch --- belongs to same real person or legal person
Branch cannot adopt a business policy independent from the head office
Loss and profit belongs to head office
should be independent from head office in its dealings with the third parties
C. should have its own place, management and accounting

17. BRANCH
Kaynak: Sami Karahan, Ticari İşletme Hukuku 2011
IMPORTANT!
Although it is not a branch, usage of “branch” term as if it is a branch
Seperated capital allocated to the branch
Collection of cheques and draft by the branch
The above mentioned points are not of importance to be a “branch”

18. LEGAL CONSEQUENCES OF BEING BRANCH
Kaynak: Sami Karahan, Ticari İşletme Hukuku 2011
LEGAL CONSEQUENCES OF BEING BRANCH
Registration to Register of Commerce
Registration to Chambers- registration to the chambers where the branch takes place
C. Trade-name
Branches should use their Head Office trade names by mentioning that they are branch
Legal person----Ziraat Bank Konak Branch
Real person---- Neslihan Yargıcı Cevahir AVM Branch
D. Representation

19. CONCEPT of “merchant” Regulated in Article 11-23 of TCC Merchants:
Real (natural) persons
Legal person
In TCC, “merchant” concept regulated seperately from the point of “real person” and “legal person”

20. MERCHANT REAL (NATURAL)PERSONS LEGAL PERSONS
Definition: Person who operates a commercial enterprise, at least in part,under his name.
Elements:
-Existence of a commercial enterprise
-Operation of the commercial enterprise, at least in part
-Operation of the commercial enterprise, at least in part, under the name of the person concerned
Commercial companies
Associations & Foundations which operate commercial enterprise to achieve their targets
Entities which are formed by State, Private Provincial Administration, Municipality, Village and other public corporations to be operated in a commercial manner or pursuant to their statutes of foundation to be managed according to private law

21. REAL PERSON merchant-DEFINITION
Definition: (Article 12.1 TCC)
The person who operates a commercial enterprise, at least in part, under his name

22. ELEMENTS OF REAL PERSON MERCHANT
Commercial Enterprise
De facto operation
Operation under the name of the merchant
= MERCHANT

23. REAL PERSON merchant-CONDITIONS
A- Existence of a Commercial Enterprise
General rule: To qualify as a merchant, existence of commercial enterprise is the first condition
Elements of commercial enterprise?
BUT
A person who although has not established a commercial enterprise, enters into relationship with third parties as if he had formed a commercial enterprise, shall be held liable like merchant against third parties in good faith

24. REAL PERSON merchant-CONDITIONS
B- Operation of the commercial enterprise
What is the meaning of “ operation of commercial enterprise?
Establisment of an enterprise
Enter into business dealings with third parties
De facto operation
TCC Article 12/II
“Bir ticari işletmeyi kurup açtığını, sirküler, gazete, radyo, televizyon ve diğer ilan araçlarıyla halka bildirmiş veya işletmesini ticaret siciline tescil ettirerek durumu ilan etmiş olan kimse, fiilen işletmeye başlamamış olsa bile tacir sayılır”
The person involved should have started the operations. If he/she has entered the establishment
with register of commerce and publication or
has made annnouncements to the public, whether through newspapers or by distributing letters or leaflets, adverstising establishment,
he would still be regarded as a merchant
Rights&obligations of being merchant

25. REAL PERSON merchant-CONDITIONS
C- Operation of the commercial enterprise at least in part, under the name of the person concerned
“at least in part” – jointly operation of enterprise by more than one person
Operation of the enterprise by merchant is not compulsory
On behalf of merchant, anyone may operate the commercial enterprise
“Merchant character” belongs to whom? Worker?

26. SPECIAL STUATIONS People who are minor and who are under guardianship
People barred from involving in commercial business
Dealing in commercial activities depended on a permission

27. SPECIAL CONDITIONS- MERCHANT?
A- People who are minor and who are under guardianship : According to TCC Article 13, if the commercial enterprise is operated by a legal representative (guardian by nature or curator) on behalf of the people who are minor and who are under guardianship, these people shall be deemed as merchant
Legal responsibility derived from being merchant belongs to people who are minor and who are under guardianship but criminal liablity belongs to guardian by nature or curator

28. SPECIAL STUATIONS
B-People barred from involving in commercial business
Article 14/I of TCC: The person who are deprived of or prohibited from dealing in commercial activities because of
Their personal status or
The position/profession they occupy
Prohibition: Legal provision or Judgment
Permission required: (person or legal authority)
Deemed as merchant accordingly, if they are engaged in commercial enterprise

29. SPECIAL STUATIONS
B- People barred from involving in commercial business- Cont.
Example: Civil servants
prohibition related to commerce
If operates commercial enterprise
Shall be deemed as merchant
At the same time, the person shall be subject to legal, criminal and disiplinary sanctions according to their private law
For civil servants disiplinary sanction

30. SPECIAL STUATIONS
C- Dealing in commercial activities depended on a permission

31. Legal person merchant Commercial companies
Associations which operate commercial enterprise
Foundations which operate commercial enterprise
Entities which are formed by State, Private Provincial Administration, Municipality, Village and other public corporations to be operated in a commercial manner or pursuant to their statutes of foundation to be managed according to private law

32. Consequences of being MERCHANT
Regulated in Article of NTCC
Subject to banckruptcy
Registration to the register of commerce
Registration to the Chambers
Selection and usage of trade name
Subject to presumption of commercial affair
Subject to trade customs and usage
To keep commercial books
To behave as a prudent business man
To claim fee and interest
To claim discount in the fee and interest
To pass an invoice
Right of objection against invoice and confirmation letter within 8 days
Form requirement for all notices and notification
Benefit from the easiness concerning the usage of lien
Subject to special provisions concerning sales and change of goods.

33. Affairs Ordinary affairs– commercial affairs
Commercial affairs are different from ordinary affairs and subject to different rules

34. COMMERCIAL AFFAIRS A- TCC Article 3
The ones which are regulated in the TCC
The ones which are concerning the commercial enterprise
B- TCC Article 19- presumption
The debt of the merchant is commercial. (19.1)
Exception for real person merchants
C- Affairs which is deemed commercial for one party (19/2)
The contracts which are deemed as commercial for one party, shall be accepted as commercial for the counter party

35. A-The Affairs Regulated in TCC
The affairs regulated in the TCC, shall be deemed as “commercial” whether it is related to commercial enterprise or not—absolute commercial affair
Example
Valuable document
Unfair competition

36. A- Affairs concerning commercial enterprise
These are:
All prosedure and acts that take place in the other Acts (Laws-Codes) and that pertain to the commercial enterprise
All acts of the commercial enterprise

37. B-Presumption of “commercial affair”
Real Person Merchant
Legal Person Merchant
Two options to be deemed as ordinary
Explicitly declaration of the counter party
Ex. Purchasing washing machine for personal usage
As the case may be
Ex. Puchasing washing machine, (there is no explicitly declaration) but the delivery address is home address.
All of the affairs of the legal person merchant are commercial
Ex. Company, rents a property for the employees’ usage.

38. What happens if the affair is accepted as commercial for one party and ordinary for the counter party?
TTC 19.2
Unless otherwise provided in the TCC, any contract that has commercial character for one party shall be deemed as commercial for the counter party
Ex. Sales contract between merchant and civil servant
Conditions
Contract
Unless otherwise provided in the TCC
If Relationship between the parties derived from tort or unjust enrichment, this provision is not applicable

39. Consequences of Commercial Affairs
Validity of Presumption of solidarity (joint and several obligation) concerning the commercial affairs
Application of commercial interest
Legal limitation periods
Application of commercial provisions
Legal Disputes – Commercial Case

40. Presumption of solidarity
Solidarity : Consecutively,
joint and several liability concerning the commercial affairs
Generally two types of solidarity:
Among creditors: Payment of total debt to one of the creditor
Among debtors: Right of creditor to apply anyone of the debtors
Article 7 of TCC
In TCC, solidarity among debtors
Conditions:
Two or more person should be in debt against one creditor
For one of them or both of them, source of the debt should be “commercial affair”
Unless otherwise mentioned in Law or contract
The guarantors --- “co-debtor and joint guarantor”
YTK Md. 7
“İki veya daha fazla kişi içlerinden yalnız biri veya hepsi için ticari niteliğe haiz bir iş dolayısıyla diğer bir kimseye karşı birlikte borç altına girerse, kanunda veya sözleşmede aksi öngörülmemişse müteselsil sorumlu olurlar
Ticari borçlara kefalet hâlinde, hem asıl borçlu ile kefil, hem de kefiller arasındaki ilişkilerde de birinci fıkra hükmü geçerli olur. ”

41. Interest Concept of “interest”
Definition: A fee which one party pays to the counter party (in return for deprivation of the usage of money for a specific period ), for the privilege of using borrowed money

42. Types Of Interest Capital interest- Default interest
Simple interest-Compound interest
Legal interest-Conventional interest

43. TRADE-NAME

44. What is Trade-name? Trade-name is a name that is used by merchant uses
It is different from “enterprise-name”

45. Trade-name&Name It is not possible to sell & transfer
Exceptionally, different people may have same name&surname
One person has one name&surname
You may sell and trans with commercial enterprise
It is not possible for two person to use the same Trade- name.
Merchant will use different trade-name for each commercial enterprise

46. Where is it regulated?
It is regulated in Article of TCC.

47. What is enterprise name?
Regulated in Article 53 of TCC

48. Composition of Trade-name
Core
Annex
Trade-name

49. Composition of Trade-name for Real Person Merchant
Ahmet
Surname
Güzel
Trade-name
Ahmet Güzel

50. Composition of Trade-name for Real Person Merchant
Regulated in Article 41 of TCC
Name + Surname
No abbrevation related to name&surname
Annexes according to Article 46 of TCC

51. Composition of Trade-name Legal Person Merchant- Collective Company
At least one of the partners Name&Surname
İbrahim Okur ve Ortakları
Types of the Company
Collective Company
Trade-name
İbrahim Okur ve Partners Collective Company

52. Composition of Trade-name Legal Person Merchant- Collective Company
Only real persons may be partner
Ahmet Yılmaz ve Hasan Çelebi Collective Company
Ahmet Yılmaz Collective Company
Ahmet Yılmaz & Partners Collective Company

53. Composition of Trade-name Legal Person Merchant- Commandite Company
At least one of unlimited liable partners’
Name&Surname
İbrahim Okur ve Ortakları
Types of the Company
Commandite Company
Trade-name
İbrahim Okur ve Partners Collective Company

54. Composition of Trade-name Legal Person Merchant- Limited Company
Subject of company
İthalat- İhracat
Types of the Company
Limited Company
Trade-name
İthalat-İhracat Limited Company

55. Composition of Trade-name Legal Person Merchant- Joint Stock Company
Subject of company
İthalat- İhracat
Types of the Company
Joint-Stock Company
Trade-name
İthalat-İhracat A.Ş

56. Composition of Trade-name Annex
General Rule: It is not obligatory. It is optional
Article 46.1 of TCC
Mühendis Ali Yılmaz and Partners Inşaat Collective Company
Yaldız Ithalat ve Ihracat Anonim Şirketi
Annex usage conditions (annex related to identification of the merchant, financial situation, size and importance of the enterprise):
Shouldn’t be deceptive
Shouldn’t be inaccurate
Shouldn’t be contrary to the public policy

57. Composition of Trade-name Annex
Obligatory Annex- it should be used in the trade-name
“In liquidation”
The company in liquidation should mention this situation in the trade-name
“Branch”
Türkiye Vakıflar Bankası T.A.O Cebeci Branch
“Head Office”
In case of the head office is abroad, the Branch in Turkey, should mention in their trade-name the place of head office and branch
Ör. The ……….. Bank N.A, Head Office: New York, Ankara Branch
Add annex to distinguish the trade name from the one that had registered before yours.
İthalat-İhracat A.Ş İzmir İthalat İhracat A.Ş
Prohibitted Annex
Permission from the Council of Ministers is necessary to use the following words“ Türk, Türkiye, Cumhuriyet ve Milli” as a trade-name
Deceptive & inaccurate annexes are forbidden
Usage of Dr. Although he/she is not Dr.
Optional Annexes

58. Registration to the Register of Commerce
What
Trade-name selection and registration
When:
within 15 days from the opening or deemed as opened of the commercial enterprise
Where:
register of commerce

59. TRADEMARK

60. IMPORTANCE OF TRADEMARK
increased competition among companies undertaking trade in more than one country
used to simplify the identification by consumers of goods or services, as well as their quality and value
Effects on consumer preferations
Consumer dependency on products/services
Increase on the demand of product/services
Distinction: Pepsi-Cola and Coca-Cola
Asset value? Trademark value?

61. The main purpose of a trademark
the main purpose of a trademark is -to identify the source of a product and -to distinguish that product from products coming from other sources.

62. 1. What is a trademark? What it is not
Classical definition: “A trademark is any sign that individualizes the goods of a given enterprise and distinguishes them from the goods of its competitors”.
Two functions:
- individualization
- distinction (Also shows quality, origin/ be used as advertisement)
Two main characteristics:
-it must be distinctive
-it should not be deceptive

63. 1. What is a trademark?
Court of Justice of the European Communities, September 29, Case C-39/97, Canon Kabushiki Kaisha v Metro-Goldwyn-Mayer Inc., formerly Pathe Communications Corporation:
“… according to the settled case-law of the Court, the essential function of the trade mark is to guarantee the identity of the origin of the marked product to the consumer or end user by enabling him, without any possibility of confusion, to distinguish the product or service from others which have another origin.”

64. TRIPS, Article 15
Article 15 - Protectable Subject Matter 1. Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark. Such signs, in particular words including personal names, letters, numerals, figurative elements and combinations of colours as well as any combination of such signs, shall be eligible for registration as trademarks. Where signs are not inherently capable of distinguishing the relevant goods or services, Members may make registrability depend on distinctiveness acquired through use. Members may require, as a condition of registration, that signs be visually perceptible.

65. AIM/OWNER/REGISTRATION
to protect the name of the product rather than the invention or idea behind the product.
Owner:
can be owned by individuals or companies
Registration:
should be registered at a governmental agency, which is usually referred to as the Trademarks Office.

66. A trademark may consist of
words,
designs,
letters,
numerals or packaging,
abbreviations or names (famous make of car, Ford – named, of course, after Henry Ford, who built the first one)
slogans,
devices,
symbols, etc.

67. Sample Trademarks
Words: ‘Apple’ for computers; Deutsche Bank for a bank,
Arbitrary or fanciful designations: Coca-Cola, Nikon, Sony, NIKE, Easy Jet.
Names: Ford, Peugeot, Hilton (hotel)
Slogans: ‘Fly me’ , for an airline;
Devices: the star for Mercedes Benz, the flying lady for Rolls Royce
Number: the 4711 cologne
Letters: GM, FIAT, VW, KLM
Pictures or symbols: Lacoste (small crocodile)

68. DISTINCTIVENESS
when assessing the distinctiveness of a sign for a TRADEMARK it has to be judged together with the goods or services it is to be associated with.

69. The most common way of protecting a trademark is to have it registered in the Trademark Register

70. COLLECTIVE MARKS
“Collective marks usually belong to a group or association of enterprises. Their use is reserved to the members of the group or association. A collective mark therefore distinguishes the goods or services of members of the association from those of other undertakings.
The function of the collective mark is to inform the public about certain particular features of the product for which the collective mark is used. An enterprise which uses the collective mark may, in addition, use its own trademark. Example: in an association of architects or engineers, a member may use the logo of the association as well as the logo of the enterprise.”
Reference: WIPO Notes concerning General Course on Intellectual Property Rights

71. CERTIFICATE MARKS
“A certificate mark is a mark indicating that the goods or services in connection with which it is used are certified by the proprietor of the mark in respect of the origin, mode of manufacture of goods, quality or other characteristics. The certification mark may only be used in accordance with the defined standards. Example: ISO 9000.
Reference: WIPO Notes concerning General Course on Intellectual Property Rights

72. WELL-KNOWN TRADEMARKS
“Some companies have successfully established, via their trademarks or service marks, worldwide renown. Subsequently, consumers can, without effort, recognize and identify their goods and services, their qualities and their features without referring to the location of the company in question. These trademarks are called well-known marks or famous marks. Examples: Sony, Versace, Louis Vuitton, etc.”
Reference: WIPO Notes concerning General Course on Intellectual Property Rights

73. When a trademark is well-known trademark?
The Factors
degree of knowledge or recognition of the mark in the relevant sector of the public and the duration, extent and geographical area of any use of the mark.

74. TRADEMARK IN TURKISH LAW

75. RATIFIED INTERNATIONAL AGREEMENTS RELATED TO PROTECTION OF TRADEMARKS
Paris Convention
TRIPs Agreement
Madrid Protocol
Trademark Law Treaty
Vienna Agreement
Nice Agreement

76. Current Legislation Decrees with the effect of law numbered 556
By-law related to the application of Decrees with the effect of law numbered 556

77. DEFINITION Decrees with the effect of law numbered 556 Article 5
“Any sign provided that it distinguishes the goods or services of a given enterprise from the goods&services of its competitors”

78. Trademark consist of any sign such as
names ,words,
letters,
Numerals
Colour combinations ,

79. TYPES OF THE TRADEMARK Commercial Trademarks Service Trademark
Collective Trademarks
Guarantee Trademark
Community Trademark
Industrial Designs can not be registered as Trademark

80. Application for Trademark Registration
Real &Legal person or their legal representative
Necessary Documents:
Petition
Trademark sample
The list of goods or services where the trademark shall be used
Payment documents
For each trademark registration, seperate application is necessary

81. Process Formal Examination Meritorious Examination Objection period
Registration

82. Grounds for refusal of trademark registration
Absolute grounds (Article 7)
Relative grounds (Article 8)