Cablegate: Thousands of Ipr Cases May Be Dismissed

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

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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

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