NEWSLETTER-2019-metin

259 INTELLECTUAL PROPERTY LAW pended during an uninterrupted period of five years unless there is just cause for nonuse (“Genuine Use”). It is difficult to establish a general rule as to Genuine Use. There- fore, it is crucial that the trademark proprietors use their trademarks with a commercial impact in Turkey, and must be able to provide evi- dence regarding the usage. Therefore, the trademark proprietors are expected, if possible, to use their trademarks, continuously, in such a manner so that no suspicion is created; otherwise, the trademark may become open to the intervention by third parties, regardless of how well-known they are. Within this scope, the evidence proving Genuine Use must be clear, understandable and reliable, in order to make evaluations without the need for any other information. In addi- tion, the evidence must contain sufficient information on the type of use, location, time and scope of the goods or services for which the trademark is registered. For instance, lately, the European Union Intel- lectual Property Office decided to revocate the “Big Mac” trademark, since McDonald’s could not prove the genuine use of its registered trademark with objective evidence due to lack of a link between the evidence and the usage 4 in terms of time,place and extent. It is accepted that the trademark is genuinely used in the event of the use of the trademark in a form differing in elements that do not alter the distinctive character of the mark in the form in which it was registered, or if a simple shape is changed, or used in a color other than under which it is registered. Furthermore, Art. 9.2.b of the IP Law considers the use of the trademark, only in goods or packaging for export purposes as the Genuine Use of the trademark. The use of the trademark by third parties with the permission of the proprietor in line with a license, franchising, distributorship agree- ments etc. is also considered to be Genuine Use. The proprietor of the trademark may argue that it had to suspend the use of its trademark for just cause. Such just causes may be iden- tified as war, economic crises, natural disasters, changes in customs 4 Revocation Decision of EUIPO, No. 14 788 C, between Supermac’s (Holdings) Ltd and McDonald’s International Property Company, Ltd.