General

Cumulative Protection

In intellectual property law, it is possible for the same product or sign to benefit simultaneously from multiple protection regimes. The appearance of a product can be protected under design law, its original graphic or visual elements under copyright law, and its elements indicating its commercial origin under trademark law.

To illustrate with a concrete example: the appearance of an originally designed plate, consisting of its lines and forms, can fall under the protection of design law; the graphic or motif on it under copyright law; and the combination of words, shapes, or colors used to indicate the commercial origin of the plate under trademark law. Different “layers” of the same object can be protected by different legal instruments.

This situation is referred to in doctrine as “cumulative protection” or “multiple protection.” The principle of cumulative protection means that if the same intellectual product meets the conditions of more than one special protection regime, the relevant protection mechanisms can be applied simultaneously. The main reason why protection regimes can overlap on the same product is that each right protects a different legal interest. Copyright protects original creations, design rights protect the appearance of a product, and trademark rights protect the function of indicating commercial origin.

Although this principle appears attractive in theory, in practice, questions about which protection regime takes precedence and whether the regimes can be operated in parallel remain controversial. At this point, trademark rights are no longer a subject of debate as they differ from design and copyright in terms of scope and purpose of protection. However, differences of opinion have arisen regarding the concurrence of rights, specifically concerning design, unregistered design, copyright, special regulations related to these rights, and unfair competition provisions.

Concurrence of Rights

To properly frame the discussions arising from the concurrence of rights, it is first necessary to understand that each protection regime has a distinct functional logic.

Copyright, under Law No. 5846 on Intellectual and Artistic Works, secures intellectual creations bearing the author’s originality. Registration is not required; the work is protected automatically upon its creation, and this protection lasts for the life of the creator and 70 years after their death.

Legal regulations concerning designs are set out in Article 55 et seq. of Industrial Property Law No. 6769, protecting the new and distinctive external appearance of a product for a maximum of 25 years.

Trademark rights, within the framework of Article 4 of the same law, protect distinctive signs indicating commercial origin through registration, renewable in 10-year periods.

The focus points of these three regimes differ: copyright targets creativity, design rights target appearance, and trademark rights target commercial identity. This difference in focus allows a product to benefit from multiple protections simultaneously; however, it also raises the question of which takes precedence when these areas overlap.

In addition to these regulations, various protection mechanisms are also provided under the unfair competition provisions of the Turkish Commercial Code, depending on the specifics of the concrete case.

Design and Copyright Protection

Particularly regarding the concurrence of rights within design and copyright protection, the European Union Court of Justice’s Cofemel decision (C-683/17) of September 12, 2019, has made a significant contribution to the discussions. The Court accepted that design and copyright protection can be granted simultaneously, emphasizing that this is only possible under certain conditions. The decision clearly states that both types of protection have different purposes, and this difference in purpose defines the limits of cumulative application.

The purpose of design protection is to ensure new appearances suitable for mass production for a limited period, thereby balancing competition; whereas copyright protects creations of artistic work for a much longer period. This difference in purpose is the fundamental factor determining the conditions and limits for applying both protections simultaneously.

Design and Unfair Competition

In Turkish law, the question of whether the unfair competition provisions of the Turkish Commercial Code can be applied simultaneously in infringement lawsuits related to registered designs has become a subject of debate recently.

During the period of the repealed Turkish Commercial Code No. 6762, it was a well-established understanding that plaintiffs holding registered industrial property rights could rely on both specific provisions and the unfair competition regulations of the Turkish Commercial Code simultaneously. This cumulative application approach was widely supported in doctrine and continued even after the entry into force of the Industrial Property Law No. 6769 in 2017.

However, dissenting opinions in some recent decisions of the 11th Civil Chamber of the Supreme Court, while indicating that the Chamber’s long-standing view supported cumulative protection, suggest that the majority tends towards the opposite. This implies that the majority view is to limit or reject cumulative protection within the framework of the special law-general law relationship.

As the most recent and clear example, the decision of the İstanbul Anadolu 1.  Fikri ve Sınai Haklar Hukuk Mahkemesi dated 21.10.2025, with case number 2025/266 K., rejected the separate application of Turkish Commercial Code’s unfair competition provisions in cases of trademark infringement. In this decision, the unfair competition claims were rejected on the grounds that “the special provisions introduced by the SMK regulate unfair competition law in a more superior protective manner, encompassing it. Since the plaintiff also relied on these special provisions, in the case where the scope of protection of the registered design and the scope of protection of unfair competition intersect, only the special provisions will apply, and there is no legal provision requiring the application of unfair competition provisions alongside the special provision, thus there is no legal basis for the simultaneous application of unfair competition provisions with the special law.” The fundamental argument behind the Supreme Court’s stance is that the Industrial Property Law No. 6769 has the character of lex specialis. The Industrial Property Law No. 6769 protects registered design and trademark rights more strongly and comprehensively compared to unfair competition. In this context, evaluating the same infringement under both the SMK and the Turkish Commercial Code simultaneously would mean operating the general law alongside the special law, which is incompatible with the fundamental principles of legal methodology.

Unregistered Design and Unfair Competition

The Supreme Court’s stance outlined above is valid for registered design rights. It should also be considered separately whether the situation differs for unregistered designs.

A design for which a registration application has not been made, has been rejected, or whose protection period has expired will no longer be protected under the Industrial Property Law No. 6769. Whether this gap can be filled by the unfair competition provisions of the Turkish Commercial Code remains controversial. While it can be argued that general unfair competition provisions may apply in the absence or inadequacy of a special law, this approach needs to be structured differently from lawsuits based on registered rights.

In this context, it can be said that unfair competition provisions serve a gap-filling function for intellectual products that fall outside the scope of the intellectual property system or have not yet completed the registration process; however, the limits and conditions of this function are expected to be clarified by judicial precedent.

Trademark and Copyright Protection

The simultaneous application of trademark and copyright causes less debate than other types of rights. The main reason for this is that the two protections have distinctly separate functions.

Nevertheless, overlaps cannot be denied. An original logo can benefit from both copyright protection and trademark registration. The simultaneous operation of these two protections means that copyright will remain valid, especially if trademark protection expires or becomes invalid, thus offering an additional layer of security to the right holder.

Trademark and Unfair Competition

The relationship between trademark and unfair competition is also evaluated on a similar logical axis. Considering the Supreme Court’s recent jurisprudence in the field of design, it can be foreseen that the parallel application of Turkish Commercial Code’s unfair competition provisions in lawsuits based on registered trademarks will find an increasingly narrow scope.

Conclusion

The issue of the concurrence of rights continues to be one of the most dynamic and practically critical areas of intellectual property law. For this reason, a single creation or product can benefit from multiple protection regimes simultaneously, provided that different conditions are met. This possibility of cumulative protection is particularly evident in applied arts, where original designs can also fall within the scope of copyright law.

However, the Supreme Court’s recent jurisprudence has clearly stated that the unfair competition provisions of the Turkish Commercial Code cannot be invoked in parallel in lawsuits based on registered design and trademark rights. This development represents a radical departure from the cumulative application understanding established during the period of the repealed Turkish Commercial Code No. 6762 and has significant strategic implications for practitioners.

Unfair competition provisions, on the other hand, continue to function for intellectual products that are outside the scope of registration or have not yet completed the registration process. In this context, regulations regarding unfair competition maintain their complementary nature to the SMK.

Finally, a correct understanding of this tripartite protection map by right holders from the outset is of decisive importance for both litigation strategies and the selection of protection tools.

BIBLIOGRAPHY

1. Suluk C, Karasu R ve Nal T, Fikri Mülkiyet Hukuku (Güncellenmiş 7. Baskı, Seçkin 2023).
2. Suluk C ve Orhan HA, Uygulamalı Fikri Mülkiyet Hukuku, 3. Cilt, Tasarımlar (Seçkin 2008).
3. Tekinalp Ü, Fikri Mülkiyet Hukuku (5. Baskı, Vedat Kitapçılık 2012).
4. Büyükkılıç G, ‘Türk Hukukunda Fikri Mülkiyet ve Haksız Rekabet Hükümlerinin Kümülatif Uygulanabilirliği’ (2024) 10(1) Ticaret ve Fikri Mülkiyet Hukuku Dergisi 101-118, DOI: 10.55027/tfm.1444529.
5. Özden Merhacı S, AB Düzenlemeleri ve SMK’nda Tasarımların Hükümsüzlüğü (Seçkin 2023).
6. Erdil E, Haksız Rekabet Hukuku (Vedat 2022).
7. Çolak U, Türk Marka Hukuku (5. Baskı, On İki Levha Yayıncılık 2023).
8. Ayık Usta M, ‘Sınai Mülkiyet Hukukunda Kümülatif Koruma — Yargıtay 11. HD, E. 2024/5719, K. 2025/4054, T. 04.06.2025 Kararının Işığında’ (Mia Hukuk Danışmanlık, Haziran 2025).