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December 14th, 2011 WW Staff | NikeLeaks Cables: Europe
 

Turkey: IPR ASPECTS OF TURKEY'S NEW CUSTOMS LAW

     
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Reference ID: 09ANKARA902
Created: 2009-06-26 10:11
Released: 2011-08-30 01:44
Classification: UNCLASSIFIED//FOR OFFICIAL USE ONLY
Origin: Embassy Ankara

VZCZCXRO9675
RR RUEHDA
DE RUEHAK #0902/01 1771011
ZNR UUUUU ZZH
R 261011Z JUN 09
FM AMEMBASSY ANKARA
TO RUEHC/SECSTATE WASHDC 0029
INFO RUEHIT/AMCONSUL ISTANBUL 5922
RUEHDA/AMCONSUL ADANA 3954
RUCPDOC/DEPT OF COMMERCE WASHDC
RUEATRS/TREASURY DEPT WASHDC
RUEAORC/US CUSTOMS AND BORDER PRO WASHINGTON DC

UNCLAS SECTION 01 OF 02 ANKARA 000902
 
SIPDIS
SENSITIVE
 
DEPT FOR EUR/SE DMARSH, EEB/TPP/IPE JURBAN, EEB/TPP/BTA
DCITRON
DEPT PLEASE PASS USTR FOR JCHOE-GROVES AND MMOWREY
COMMERCE FOR CRUSNAK, KNAJDI
 
E.O. 12958: N/A
TAGS: KIPR ECON ETRD TU
SUBJECT: IPR ASPECTS OF TURKEY'S NEW CUSTOMS LAW
 
1. (SBU) Summary.  The Turkish Parliament approved the
long-awaited Customs Law on June 18. The law aims to fully
harmonize Turkey's customs regime with that of the European
Union, and it will now go to the President for signature.
The law will take effect three months after it is signed and
published in the Official Gazette.  This cable examines the
elements of the law that affect intellectual property rights
(IPR) - analysis of other aspects of the law will follow
septel.  Overall, the law represents a fairly significant
improvement in Turkey's IPR regime.  Customs recordation for
IPR will be greatly facilitated by the switch to an
electronic filing system and the move to an annual (vice
monthly) filing requirement.  Settling IPR disputes out of
court will also be made easier by new rules permitting
Customs to destroy infringing goods upon mutual agreement of
the rights holder and the infringer rather than requiring a
court order.  The law also enshrines in law existing
regulations on the liability that Customs officers face if
they either act on an IPR infringement or fail to act on a
rights holder's request as well as confirming their power to
act ex officio.  Despite the overall improvement in the IPR
picture under the law, there are some troubling exemptions
for hand-carried goods and grey market goods. End summary.
 
 
2. (SBU) Turkey's new Customs Law, a longstanding action item
from both the Economic Partnership Commission and the Trade
and Investment Framework Agreement meetings, moved a big step
closer to reality with its passage through Parliament on June
18.  Assuming President Gul signs the legislation, it will
enter into force three months after its publication in the
Official Gazette, most likely at the end of Q3 or beginning
of Q4.  According to Hulya Erbay, Department Head for IPR at
Turkish Customs, the law brings Turkey's customs regime fully
into harmony with European Union rules (Note: Turkey often
claims that harmonization has happened long before the EU
agrees.  End note.)
 
3. (SBU) Discussing the IPR elements of the new law, Erbay
noted that the most significant change will be the move from
a paper-based customs recordation system to an electronic
one.  Currently, IP rights holders must file a paper form
every month at each Customs post in order to receive
protection for their goods.  This is costly and
time-consuming.  Under the new law, an electronic database
will be enabled (the system architecture is already in place)
that will allow for a single electronic filing to the main
Customs headquarters once per year.  All posts will be able
to access this file electronically, reducing the burden on
both rights holders and Customs officers.  Eventually, the
system will also be hooked into the National Judicial Network
Project (UYAP), allowing faster judicial access to Customs
documentation.
 
4. (U) The law also facilitates the use of out-of-court
settlements between rights holders and infringers by allowing
Customs to destroy goods with the mutual consent of the
rights holder and the infringer.  Under the current system,
Customs can only destroy goods with a court order (this will
still be possible under the new law).  Many rights holders
prefer to negotiate out-of-court settlements as a way to
avoid lengthy court battles and even lengthier appeals
processes, but have been held back because Customs was
required to return the goods to the infringer if there was no
court case.  These returned goods often ended up back on the
market.  Under the new system, the goods can be destroyed
without the need for judicial intervention.
 
5. (U) In addition, the law clarifies the degree of liability
faced by Customs officers who act on IPR violations and
confirms the ability of officers to take ex officio action to
seize infringing goods.  Erbay explained that these rules
were already codified in internal Customs regulations, but
that the new law gives them a more permanent legal status.
Officers who initiate in good faith an investigation or
seizure for an IPR infringement, whether upon request of the
rights holder or ex officio, will not be subject to any
personal liability for damages to the goods' owner arising
from the seizure (even if the goods turn out to be genuine).
Conversely, if a rights holder informs Customs that there is
a suspect shipment and the Customs officer fails to take
action to seize the goods for inspection, they can be held
liable for any resulting damages to the rights holder.
 
ANKARA 00000902  002 OF 002
 
 
Finally, Customs officers will not be held liable for failing
to seize a shipment in the absence of a specific complaint
from the rights holder or if the complaint comes after the
goods have already cleared customs (i.e. goods that simply
slip through the customs net will not create a potential tort
action against the officers who failed to notice them).
 
6. (SBU) A troubling aspect of the law is the continuation of
a specific exemption from seizure by Customs for
IPR-infringing non-commercial goods carried in the personal
effects of passengers.  The law also creates a new exemption
for genuine goods that are being distributed without the
rights holder's permission or in a manner not consistent with
the licensing agreement (e.g. a genuine Nike product
distributed in Germany being imported into Turkey for
unlicensed resale).  The intent of these provisions appears
to be to prevent Customs officers from wasting time trying to
determine if a private individual's handbag is fake or not
and to keep Customs officers from having to adjudicate
whether a licensing agreement is being honored to the letter.
 The result, however, may be to encourage either small-scale
smuggling of high-value counterfeit goods in passenger
luggage or large-scale grey market resale of genuine goods.
Despite these exemptions, the new Customs Law has to be seen
as a significant strengthening of Turkey's IPR regime.
 
Visit Ankara's Classified Web Site at
http://www.intelink.sgov.gov/wiki/Portal:Turk ey
 
JEFFREY

 
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