Under Article 5(1)(b) of the Turkish Industrial Property Code (IPC) — mirroring Article 7(1)(b) of the EU Trade Mark Regulation (EUTMR) — a trademark application will be refused if the sign lacks distinctive character.
Meaning: The sign must be capable of identifying the goods or services as originating from a particular undertaking, thereby distinguishing them from those of other undertakings.
What Does “Distinctive Character” Mean?
A sign has distinctive character if:
Consumers can immediately recognise it as indicating commercial origin. It stands out from common, generic, or purely descriptive signs in the relevant trade sector. It is not merely decorative or a generic shape without source-indicating function.
Examples of Non-Distinctive Signs
Example
Reason for Refusal
“FRESH MILK” for dairy products
Purely descriptive and generic
A basic geometric shape (e.g., plain circle) for packaging
Commonplace, no source indication
Single letter “A” in standard font for clothing
Ordinary, used widely without distinctiveness
Image of an apple for fruit
Descriptive of the goods
Why Are They Refused?
The refusal prevents:
Monopolisation of everyday language (e.g., “Best Coffee”). Blocking competitors from using terms or shapes commonly needed in trade. Consumer confusion due to lack of clear brand identity.
How to Overcome a Refusal for Lack of Distinctiveness
If the Turkish Patent and Trademark Office (TPTO) or EUIPO refuses your trademark under this ground, you can:
Provide evidence of acquired distinctiveness through use (Article 5(2) IPC / Article 7(3) EUTMR). Sales figures, advertising campaigns, market surveys. Proof that the public associates the sign with your business. Modify the mark to add distinctive elements (logos, stylisation, unusual word combinations). Argue inherent distinctiveness by showing: The term has no direct descriptive link to the goods/services. The sign is arbitrary or fanciful in the relevant market.
Key Case References
CJEU – “Baby-Dry” (C-383/99 P): Compound word could be distinctive if unusual in expression. CJEU – “Doublemint” (C-191/01 P): Descriptive terms remain unregistrable if at least one meaning describes a characteristic. Turkish IP Court – “Şifa” for mineral water: Refused for being a laudatory/descriptive term meaning “healing”.
Practical Tip
When creating a brand:
Avoid purely descriptive or overused generic terms. Invent new words or use figurative elements that give your mark a unique identity. Consider conducting a distinctiveness check before filing.
📌 Call to Action:
If your trademark has been refused for being “devoid of distinctive character,” professional legal strategy can turn the tide. Contact us to evaluate your case, prepare an acquired distinctiveness dossier, and increase your chances of registration.
📧 Email: emre@emrekurt.av.tr
📱 WhatsApp: +90 551 942 20 34
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