The burden of proof online
The most important function of a trademark is to distinguish those goods and services that belong to an entity. The mark can fulfil its function only through use.
When global trademark laws are examined, the most common international thread is the understanding around the use of a particular trademark. Even if registration provides at least 10 years’ protection and exclusive right to use the mark, the registered trademark has to be put to ‘genuine use’. However, even if the ‘use’ of mark is a common subject, the understanding of ‘genuine use’ may differ by country.
Considering the wide and increasing use of the Internet, ‘use of a mark on the Internet’ has become a significant component of trademark law. One of the most important questions emerging from this issue is: “Can use on the Internet be sufficient to prove genuine use of a mark?”. In this article we intend to address this question in light of legal practices in a number of countries, including Turkey.
In 2001, the World Intellectual Property Organization (WIPO) and the Assembly of the Paris Convention adopted a Joint Recommendation concerning Provisions on the Protection of Marks and Other Industrial Property Rights in Signs on the Internet. According to Article 2 of the recommendation, “use of a sign on the Internet shall constitute use in a member state for the purposes of these provisions, only if the use has a commercial effect in that member state”.
