VZCZCXRO7562
PP RUEHDA
DE RUEHAK #2191/01 3660456
ZNR UUUUU ZZH
P 310456Z DEC 08
FM AMEMBASSY ANKARA
TO RUEHC/SECSTATE WASHDC PRIORITY 8344
INFO RUEHIT/AMCONSUL ISTANBUL PRIORITY 5165
RUEHDA/AMCONSUL ADANA PRIORITY 3476
RUCPDOC/DEPT OF COMMERCE WASHDC PRIORITY
RUEAWJA/DEPT OF JUSTICE WASHDC PRIORITY

UNCLAS SECTION 01 OF 02 ANKARA 002191 
 
SIPDIS 
SENSITIVE 
 
EEB/TPP/IPE FOR JOELLEN URBAN 
DEPT PLEASE PASS USTR FOR JCHOE-GROVES AND MMOWREY 
USDOC FOR ITA/MAC/CRUSNAK, KNAJDI 
 
E.O. 12958: N/A 
TAGS: KIPR ECON KCRM TU
SUBJECT: THOUSANDS OF IPR CASES MAY BE DISMISSED 
 
REF: ANKARA 2128 
 
¶1. (SBU) Summary. As reported reftel, in July the 
Constitutional Court struck down provisions of the trademark 
law criminalizing IPR violations and gave the GOT until 
January 5, 2009 to pass legislation that meets constitutional 
requirements.  With January 5 fast approaching and the 
Parliament in recess until January 6, it appears that Turkey 
is likely to miss this deadline.  According to Selcuk 
Guzenge, Chairman of the Trademarks Association, this will 
cause the dismissal of approximately 9000 pending IPR cases, 
a prospect confirmed by Ministry of Justice (MOJ) officials. 
While we do not know how many of these cases involve U.S. 
firms, Judge Hulya Cetin at MOJ informed us that once these 
cases are cancelled they cannot be re-tried in the future 
even if a new law is passed.   Several major business 
organizations will be meeting with the head of the Turkish 
Patent Institute on the evening of December 30 to ask him to 
push for speedy passage of a new law before the deadline, but 
it is unclear how effective that will be. End summary. 
 
¶2. (SBU) On July 5, the Constitutional Court struck down the 
provisions of the "Protection of Trademarks" law that made 
trademark violations a crime on the grounds that the law was 
a decree with the effect of law rather than actual 
legislation, which violates the Constitution.  The Court 
decision will be implemented on January 5, 2009, giving the 
GOT until that date to pass new legislation.  Officials from 
Ministry of Justice (MOJ) and the Turkish Patent Institute 
(TPI) believed that the GOT was committed to patching this 
hole before the end of the year.  With Parliament currently 
in recess until January 6, however, it looks likely that 
Turkey will miss the deadline. 
 
¶3. (SBU) The impact of this failure could be extensive. 
Selcuk Guzenge, Chairman of the Trademarks Association (TMD), 
said that there are currently about 9000 pending IPR cases 
that will be thrown out on January 5 barring a last-minute 
fix.  He was unable to estimate how many of these might 
involves U.S. firms. Hulya Cetin, an IPR judge at MOJ, 
confirmed that if a new law is not passed, previous illegal 
IPR violations would no longer be considered criminal and any 
cases based on the unconstitutional provisions would be 
cancelled. Cetin stated that "if there is no crime, there can 
be no case." Even if a new law is later passed, the prior 
violations involved in the pending cases could not be 
re-tried, as they would not have been crimes at the time they 
were committed. (Note: Previously adjudicated cases would not 
be affected.) 
 
¶4. (SBU) Both Cetin and Guzenge expressed hope that some sort 
of solution can be achieved before the deadline.  According 
to Guzenge, the Hakki Koylu amendment to the new patent law 
(whose problems we reported on reftel) has been rehabilitated 
by the TPI and brought up to international standards. As this 
law is currently sitting with the Justice Committee, it could 
theoretically be brought forward rapidly to the full 
Parliament and approved in its own right.  Guzenge claimed 
that this would solve the problem, at least until the new 
patent law is approved. Parliament could also simply pass the 
long-delayed patent law itself, but neither Cetin nor Guzenge 
thought that likely due to the detailed and technical nature 
of the full law. (Comment: Post has not yet seen a copy of 
the revised amendment, but it may well meet the immediate 
concerns.  The GOT's long-term solution still seems to be to 
pass the patent law. End comment.) 
 
¶5. (SBU) Guzenge informed us that in the evening of December 
29, he met with representatives from affected companies, the 
International Investor's Association (YASED), the Union of 
Chambers of Commerce and Commodity Exchanges (TOBB), and the 
Turkish Industrialists and Businessman's Association (TUSIAD) 
to discuss this problem.  The four organizations jointly 
agreed to meet with Habip Asan, Head of TPI, to urge him to 
press for immediate legislative action to resolve this issue. 
Guzenge is hopeful that the united front will convince the 
GOT to take this issue seriously and to reconvene Parliament 
long enough to pass the law. 
 
¶6. (SBU) Comment: Even if the GOT takes immediate steps to 
reconvene Parliament, with the New Year's holiday it may not 
be possible to get Parliament together in time to consider 
and pass the legislation, meaning that the deadline is likely 
to pass with no action.  Regardless of whether the problem is 
later fixed, the cancellation of thousands of lawsuits will 
 
ANKARA 00002191  002 OF 002 
 
 
merely reinforce the frequent investor complaint that the 
rules of Turkey's investment keep changing, making long-term 
planning impossible.  Turkey's steady progress in terms of 
improving its IPR regime will also be substantially set back, 
at least in the short-term. End comment. 
 
Visit Ankara's Classified Web Site at 
http://www.intelink.sgov.gov/wiki/Portal:Turk ey 
 
Jeffrey