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