📜 Article 5(1)(d) – Legal Text:
Signs which consist exclusively or include as an essential element of signs or indications used by everyone in the trade area or which serve to distinguish members of a particular professional, vocational or commercial group from others.
📌 What Does This Mean?
Article 5(1)(d) blocks registration of marks that are already in common use within a specific trade, profession, or industry. The idea is: no single trader can monopolize signs that belong to everyone in that sector.
Used by Everyone in the Trade: e.g., “pharma”, “eco”, “tech” if commonly used. Professional Group Indicators: e.g., “doctor”, “engineer”, or symbols like ⚖️ or ⛑️. Group Identifiers: e.g., “Bakers Association,” which shows membership, not brand origin.
⚖️ Why Is This a Ground for Refusal?
Fair Competition: Keeps industry-wide terms free. Public Domain Protection: No private monopoly on professional symbols. Consumer Protection: Avoids confusion between “profession” and “brand.”
❓ Frequently Asked Questions (FAQ)
1. Why was my trademark application rejected under Article 5(1)(d)?
Because your mark is considered a common sign in the trade area or only indicates membership of a group/profession.
2. How is this different from Article 5(1)(c)?
5(1)(c) = descriptive signs (“fresh bread”). 5(1)(d) = commonly used trade signs (“eco”, “pharma”).
3. Can I ever register such a sign?
Yes, if you prove acquired distinctiveness (secondary meaning).
4. What evidence counts for distinctiveness?
Long-term, intensive commercial use. Market surveys & consumer recognition. Large advertising campaigns.
5. What steps can I take after refusal?
File an appeal before TPTO YİDK. Provide strong use evidence. If still rejected, litigate before Ankara IP Courts.
📝 Possible Grounds for Appeal (İtiraz Gerekçeleri)
If your application is refused under Article 5(1)(d), you may argue:
The sign is not actually “common in trade.” Provide evidence that the word/term is not widely used in the industry, or that its usage is marginal. Distinctiveness through stylisation. Even if the word is common, your trademark might have a unique logo, font, or graphic representation that makes it distinctive. Acquired distinctiveness (secondary meaning). Show consumer surveys, media coverage, and long-standing use linking the mark to your business alone. Combination with other distinctive elements. Argue that the sign is not used “exclusively” but forms part of a larger, distinctive trademark. Sector-specific differences. Prove that while the term may be used in one industry, it is not common in your specific goods/services. Consumer perception test. Provide evidence that the average consumer perceives your mark as an indicator of origin, not merely as a professional term.
✅ Practical Tips for Applicants
Avoid overused industry terms. Add unique, coined, or graphic elements. Prepare evidence of recognition before filing.
📣 Call to Action
Has your trademark been refused under Article 5(1)(d)? Don’t lose your brand rights. With the right appeal strategy, many refusals can be overcome.
📧 Email: emre@emrekurt.av.tr
📱 WhatsApp: 0551 942 20 34
🔖 Hashtags
#TrademarkLaw #TrademarkRefusal #Article5 #BrandProtection #IPLaw #AcquiredDistinctiveness #BusinessLaw #EmreKurt