Intellectual and industrial property rights are among the fundamental factors that today directly affect competitiveness, pioneering capacity, and value creation for both natural and legal persons engaged in economic activity and for all actors who contribute to creative production processes. Due to their technical nature, sensitivity arising from their connection with commercial and creative processes, and their exposure to rapidly changing market conditions, disputes concerning these rights often increase the need for faster, more flexible, and expertise-based resolution methods rather than traditional court proceedings. In particular, where rights such as patents that require significant investment during the development process yet granting the owner a monopoly right for a highly limited period are at stake, the rapid resolution of disputes becomes even more important.
According to official statistics published by the Ministry of Justice, the average duration for a case in the field of industrial property before the civil courts for intellectual and industrial property rights was around 461 days in 2024.[1] On the other hand, applications for trademarks and other industrial property rights continue to increase every year, which indicates that the number of disputes, and thus the average adjudication time, will also rise. Therefore, considering the growing interest in intellectual and industrial property rights in Türkiye and the existing workload on the judiciary, traditional litigation procedures may become insufficient in the future to provide an effective and appropriate adjudication process required by intellectual and industrial property law.
This foresight further highlights the importance of effective, swift, and expertise-based alternative dispute resolution mechanisms in intellectual and industrial property disputes. From the standpoint of having complex technical issues assessed by neutral experts, addressing commercial and creative dynamics in an appropriate manner, and enabling parties to secure their rights within a shorter time, alternative dispute resolution methods such as mediation and arbitration appear to have become a necessity. These mechanisms both reduce the judiciary’s workload and strengthen the protection of intellectual and industrial property rights by providing parties with a more predictable, confidential, flexible, and specialized resolution environment.
1. Alternative Dispute Resolution Methods Within the Scope of Industrial Property Rights
Article 5/A of the Turkish Commercial Code (“TCC”) provides for mandatory mediation with regard to certain disputes that qualify as commercial cases, particularly those involving monetary claims, compensation, annulment of objection, negative declaratory actions, and restitution claims. Since Article 4 of the TCC classifies civil lawsuits arising from intellectual property legislation as commercial cases regardless of whether the parties are merchants, many disputes arising from the Industrial Property Code (“IPC”) fall within the scope of this mandatory mediation requirement. Accordingly, in disputes concerning industrial rights such as trademarks, patents, and designs, the mediation process has become a stage that must be pursued before access to the courts.
On the other hand, particularly in trademark infringement cases, the Court of Cassation holds that if compensation claims are asserted together with other claims such as cessation or prevention of infringement, there is an objective joinder of claims, and in such cases the obligation to apply to mediation will not arise.[2] This practice of the Court of Cassation is criticized because it is considered to disregard the clear mandatory provision of the TCC. [3]
In practice, disputes arising from license and sub-license agreements, issues relating to technology transfer and know-how sharing, conflicts over trademark use in franchise and distributorship relationships, royalty calculations, or payment/consideration disputes are frequently subject to mediation. Since the mediation stage allows technical and commercial dimensions to be assessed together, it provides parties with a flexible, solution-oriented negotiation ground.
In addition to mediation, the IPC also regulates special resolution mechanisms such as arbitration. For example, in disputes concerning employee inventions, mandatory arbitration is applied pursuant to the regulations issued based on Article 115/11 of IPC, and this offers a more suitable path for disputes requiring technical expertise and confidentiality.
2. Mandatory Arbitration in Employee Inventions
Article 115/11 of the IPC regulates that the arbitration procedure to be applied in disputes regarding remuneration and related matters in employee inventions shall be determined by a regulation. Pursuant to Article 24 of the Regulation on Employee Inventions and Inventions Made in Higher Education Institutions and Inventions Emerging in Public Supported Projects (“Regulation on Employee Inventions”), which was issued based on this provision, recourse to arbitration is mandatory in disputes arising from employee inventions.
Disputes within the scope of the regulation are not limited solely to determining the remuneration. Under Regulation on Employee Inventions Article 24, arbitration is stipulated as a mandatory remedy for disputes arising between an employee and an employer regarding the invention, disputes among employees themselves, and disputes concerning the amount and method of payment of the invention remuneration, as well as all disputes related to other rights and obligations. This scope aims to ensure that technical and financial disputes related to employee inventions are handled within a specialized arbitration process.
Most disputes regarding employee inventions are closely connected with technology, engineering, and R&D activities. Indeed, in many enterprises, technical and scientific personnel are employed to develop new industrial property rights or improve existing rights. Disputes arising in this context generally include detailed technical elements such as determining the economic value of the invention, calculation of additional payments, the scope of the employer’s claim of rights over the invention, or the degree of employee contribution to a design. Arbitration enables these technical disputes to be resolved more quickly and effectively by expert individuals. Moreover, the protection of technological information and trade secrets, critical for many companies, can be secured within the arbitration process. In this respect, mandatory arbitration is a functional mechanism aimed at both expediting dispute resolution and ensuring robust technical and financial evaluations.
Since it is expressly regulated that mandatory arbitration applies in employee inventions, mandatory mediation as a precondition to litigation does not apply to disputes arising from employee inventions, and it is not possible to introduce such an obligation. Nevertheless, paragraph 5 of Article 24 of the Regulation on Employee Inventions provides that parties may apply to a mediator before resorting to arbitration; thus, although mandatory mediation does not apply, parties may voluntarily apply to mediation. However, voluntary mediation is possible only to the extent the parties have the will to settle; if the dispute cannot be resolved, it will be brought back to arbitration.
3. Settlement Processes for Disputes Before the Turkish Patent and Trademark Office
The IPC also opens the door to steering parties toward mediation in disputes arising during the registration process of industrial property rights. In this context, particularly in opposition proceedings, the Turkish Patent and Trademark Office is granted the authority to encourage parties to mediate. Similarly, in oppositions filed against geographical indication and traditional product name applications, the Office may also direct parties toward mediation. Article 19(4) of the IPC provides that “Where the Office deems it necessary, it may encourage the parties to settle. In matters related to settlement, the provisions of the Code on Mediation in Civil Disputes No. 6325 dated 7/6/2012 shall apply.”. This both regulates the Office’s authority to encourage settlement and clarifies the settlement process before the Office by specifying that the provisions of Code on Mediation in Legal Disputes apply. It is observed that the IPC uses the concepts of mediation and settlement together within the said provision.
Pursuant to Article 32 of the Regulation on the Implementation of the IPC, the Office may, where it deems necessary, invite the parties to reconcile during the examination of oppositions to publication and objections filed against decisions issued under Article 19/3 of the IPC. The parties must submit a written declaration of reconciliation within one month; failure to provide a positive response in due time results in rejection of the reconciliation invitation and the examination continues from where it left off. If the parties inform the Office that they wish to reconcile and will apply to a mediator, the opposition examination is postponed for three months; this period may be extended for an additional three months upon the parties’ joint request.
In the process encouraged toward reconciliation, if an offer made by one party is not accepted within thirty days, it is deemed rejected; however, this does not prevent applying for reconciliation later under Code on Mediation in Legal Disputes.
Thanks to the Office’s authority to encourage reconciliation, significant practical opportunities arise for the parties to come together before resorting to court and evaluate alternative solutions such as licensing, letters of consent, or partial assignment. Since assessments such as trademark similarity or likelihood of confusion require expertise, the reconciliation process providing a negotiation environment suitable for such technical analyses facilitates the parties’ ability to reach a solution.
4. Alternative Dispute Resolution Methods Within the Scope of Intellectual Property Rights
Although civil lawsuits arising from legislation on intellectual property qualify as absolute commercial cases regardless of whether the parties are merchants under Article 4 of the TCC, the last sentence of the same article excludes from this scope “lawsuits arising from rights related to works of intellect and art that do not concern any commercial enterprise.” Therefore, not all disputes arising from the Law on Intellectual and Artistic Works (“LIAW”) are automatically subject to mandatory mediation as a precondition to litigation; rather, the connection of each specific dispute to a commercial enterprise must be assessed separately.
Many disputes under the LIAW may take on the nature of a relative commercial case where the parties are merchants and the dispute relates to both parties’ commercial activity areas. In such cases, mandatory mediation as a precondition becomes obligatory. For example, a copyright dispute involving a compensation claim concerning delivery of a project between an architectural office that is a merchant and a contractor that is also a merchant falls within this scope; a lawsuit cannot be filed without first applying to mediation, and otherwise the case is dismissed due to the absence of a condition precedent. However, if, alongside the compensation claim, determination of infringement is requested, then mandatory mediation will not come into play due to the objective joinder of claims, as noted in practice.
While some disputes under the LIAW are subject to mandatory mediation as a precondition to litigation, the law also provides, in certain situations, a special and different alternative dispute resolution mechanism. For instance, in determining tariff fees for the use of works, performances, phonograms, and similar content in public places, a special conciliation commission mechanism exists. If the parties cannot reach an agreement within the prescribed periods, this commission established under the Ministry of Culture and Tourism facilitates negotiations on the tariffs. Although the commission’s report is not binding, it guides the parties toward concluding a contract, and if no agreement is reached, the parties’ right to resort to the courts remains reserved. This process is operated in line with principles such as keeping costs at a reasonable level, preserving the sector’s structure, and preventing distortion of competition, for the benefit of both right holders and users.
Another important point for disputes under the LIAW is that the field provides not only civil but also criminal protection. Most crimes under the LIAW are subject to complaint and, due to their nature, are suitable for the mediation regulated within the scope of Code of Criminal Procedure (“CCP”). With the amendment made to CCP Article 253 in 2016, the previous limitation providing for removal of crimes containing effective remorse provisions from the scope of mediation was removed. Consequently, crimes regulated under LIAW Article 71, which previously could not be subject to mediation due to the effective remorse provision they contained, can now be subject to mediation when the conditions are met.
As a result, some disputes arising from the LIAW may be subject to civil mediation, while others may be subject to criminal mediation mechanisms. Within this framework, the mediation process provides significant advantages for LIAW disputes, such as confidentiality, speed, cost-effectiveness, and access to technical expertise. It is an effective resolution method especially where the continuation of commercial relationships is desired, technical complexity is high, or the parties seek flexibility in negotiation. Nevertheless, the need for preliminary injunctions in ongoing infringements, power imbalances between the parties, or disputes concerning non-transferable moral rights define the limits of mediation. Therefore, the nature of each dispute must be assessed meticulously in terms of whether mandatory mediation or conciliation mechanisms apply.
5. TRABİS and UCHS Processes: Rapid Resolution in Domain Name Disputes
TRABİS (.tr Network Information System), which became operational on 14 September 2022, assumed the management of “.tr” domain names in Türkiye and adopted the “first come, first served” principle for allocation processes in this area. With this regulation, it became possible to allocate domain names without requesting documents from applicants for many subdomain types such as com.tr, org.tr, and net.tr. This made it necessary to establish a rapid and effective dispute resolution mechanism against potential bad-faith applications in domain name allocation.
At this point, Dispute Resolution Service Providers (“DRSP”) offer a rapid, low-cost, and practical alternative for the resolution of .tr domain name disputes. Pursuant to Article 25(1) of the Regulation on Internet Domain Names: “(1) For application to the dispute resolution mechanism; (a) the disputed domain name must be identical or similar to the trademark, trade name, business name, or other distinctive sign that is owned or used in commerce, and (b) the party that has had the domain name allocated must have no legal right or connection with respect to this domain name, and (c) the domain name must have been allocated or used in bad faith by the domain name holder.” Whether these conditions are met is carefully examined by experts, and disputes are typically resolved within 2 to 3 months. Depending on the decision, the domain name may be cancelled or transferred.
Certain shortcomings in the process are also observed. For example, the domain name holder’s information is not disclosed by the DRSP to the complainant throughout the process. This makes it difficult for the complainant to collect additional information and evidence regarding the domain name holder to support its claims, thereby limiting effective legal recourse to some extent.
6. World Intellectual Property Organization (“WIPO”) Arbitration Center
The WIPO Arbitration and Mediation Center offers time- and cost-efficient alternative dispute resolution options such as mediation, arbitration, expedited arbitration, and expert determination to enable parties to resolve national or international intellectual property disputes.[4] In order to initiate WIPO arbitration, an arbitration agreement must exist between the parties stating that the WIPO Arbitration Center Rules shall apply in the event of a possible dispute.
One of the most distinctive features of WIPO arbitration in intellectual property disputes is that confidentiality is regulated comprehensively and in detail. The WIPO Arbitration Rules provide, as a general principle, that not only information and documents submitted during the proceedings, but also the existence of the arbitration and even the arbitral award itself, shall be kept confidential. In this respect, WIPO arbitration minimizes the risk of a dispute becoming public, allowing the protection of trade secrets, technical information, and strategic business data. The confidentiality obligation covers not only the parties but also the arbitrators and the WIPO Center, ensuring a controlled flow of information throughout the proceedings. Confidentiality is not absolute; limited exceptions exist for instances such as party consent, necessities arising from recognition and enforcement processes, or legal obligations. Furthermore, where disclosure of trade secrets and sensitive information is unavoidable, the WIPO Rules authorize arbitrators to order protective orders, such as allowing access only to certain people or partially redacting documents, thereby establishing a protection regime that balances interests. This structure makes WIPO arbitration a secure and party-oriented alternative dispute resolution method in intellectual property and technology disputes.[5]
The WIPO Arbitration and Mediation Center also provides domain name dispute resolution services under the Uniform Domain Name Dispute Resolution Policy (UDRP) designed by WIPO. UDRP is the most preferred dispute resolution mechanism before WIPO. [6]
UDRP applies only to disputes based on allegations that a domain name has been registered and used in bad faith; the technical registration process of a domain name, contractual relationships between the registrar and the applicant, or purely administrative disputes remain outside its scope.
For a UDRP complaint to be accepted, the complainant must prove three basic elements cumulatively: (i) the disputed domain name is identical or confusingly similar to the complainant’s trademark or distinctive sign, (ii) the domain name holder has no legitimate rights or interests in the domain name, and (iii) the domain name has been registered and is being used in bad faith.
Within the scope of the UDRP process, the appointment of the panel may be made by the parties, or upon the parties’ request, by WIPO. In practice, proceedings are usually conducted by a single panelist, though a three-member panel may be formed upon request. Additionally, the dispute may concern a single domain name, or multiple domain names owned by the same parties may be assessed together.
Depending on the nature of the dispute, the panel may decide to transfer the domain name, cancel it, or reject the complaint. However, an important limitation of this system is that panelists have no authority to award damages, attorney’s fees, or punitive sanctions.
The most significant advantage of UDRP is that it offers a fast, relatively low-cost, and expertise-based solution compared to court proceedings. On the other hand, the inability to decide anything beyond the status of the domain name, and the impossibility of bringing monetary compensation claims within this process, are among the main limitations. Therefore, especially where there are also compensation or unfair competition claims related to trademark infringement, the WIPO process may need to be evaluated together with, or as a complement to, court proceedings.
7. Arbitration Proceedings Before the Istanbul Arbitration Centre (ISTAC)
The Istanbul Arbitration Centre (“ISTAC”) is an independent, impartial, and autonomous institution providing arbitration and mediation services for the resolution of disputes between commercial parties operating in Türkiye and internationally. Disputes arising from intellectual and industrial property law are also among arbitrable disputes before ISTAC, provided there is a valid arbitration agreement between the parties. Disputes arising from license agreements, technology transfer, know-how sharing, trademark co-existence agreements, and R&D collaborations frequently become subject to arbitration within this scope.
The ISTAC Arbitration Rules are structured to meet the need for technical expertise and procedural flexibility required by intellectual property disputes. Parties are given a say in the selection of arbitrators, and depending on the nature of the dispute, it is possible to appoint arbitrators specialized in intellectual property, IT law, or technical fields. In addition, the ISTAC Fast Track Arbitration Procedure enables reaching a final award within shorter timeframes in disputes below certain monetary thresholds. This feature constitutes a significant advantage for the parties, especially in trademark and patent disputes where infringement continues or economic value erodes rapidly.
ISTAC arbitration also provides suitable ground for intellectual and industrial property disputes in terms of confidentiality, primacy of party autonomy, and procedural flexibility. The fact that arbitral proceedings are, as a rule, conducted confidentially contributes to the protection of trade secrets, technical data, and strategic information. Moreover, arbitral awards rendered under ISTAC may be recognized and enforced abroad under the 1958 New York Convention, which makes ISTAC a strong alternative in international intellectual property disputes. In this respect, ISTAC offers both domestic and foreign parties a faster and more predictable dispute resolution method and contributes to the effective protection of intellectual and industrial property rights.
8. Conclusion
The need for fast, cost-effective, and flexible alternative mechanisms in resolving disputes arising in the field of industrial property is increasing steadily. In Turkish law, mediation, mandatory arbitration, and the TRABİS and UCHS processes stand out as effective tools that respond to this need and particularly consider the continuity of commercial relationships. While mediation provides parties with a flexible negotiation environment in contractual disputes concerning industrial rights such as trademarks, patents, and designs, allowing them to evaluate technical and commercial factors together, and facilitates resolving disputes without resorting to court, mandatory arbitration offers faster and more reliable solutions in complex disputes requiring technical expertise and confidentiality, such as employee inventions. In addition, alternative dispute resolution avenues offered by national and international arbitration centers play a complementary role in intellectual and industrial property disputes. Arbitration processes conducted under the WIPO Arbitration and Mediation Center and ISTAC provide parties with effective and predictable solutions, particularly in licensing, technology transfer, know-how, and domain name disputes, thanks to advantages such as confidentiality, specialized arbitrator selection, procedural flexibility, and enforceability of awards domestically and internationally. These mechanisms function as alternatives to, or complements of, court routes and make an important contribution to the fast and effective protection of intellectual and industrial property rights. Effective and widespread use of these methods strengthens the protection of intellectual property rights, alleviates the judiciary’s workload, and allows sustainability of commercial relationships. In the coming period, with improvements particularly in technical expertise and transparency, alternative dispute resolution mechanisms are expected to become integral and more effective components of industrial property law in Türkiye.
[1]https://adlisicil.adalet.gov.tr/Resimler/SayfaDokuman/7042025092455Adalet_%C4%B0statistikleri_2024%20T%C3%BCrk%C3%A7e_Ingilizce.pdf
[2] Court of Cassation 11. Law Office., E. 2019/4851 K. 2020/2732 T. 10.6.2020.
[3] Cansu Korkmaz, ‘Davaların Yığılmasında Dava Şartı Arabuluculuk İncelemesi’ (2022) 7(2) YBHD 1365, 1390.
[4] https://www.wipo.int/amc/en/
[5] Ignacio de Castro and Andrzej Gadkowski, ‘Confidentiality and Protection of Trade Secrets in Intellectual Property Mediation and Arbitration’ in Gerold Zeiler and Alexander Zojer (eds), Trade Secrets: Procedural and Substantive Issues, 79, 87.
[6] https://www.wipo.int/amc/en/domains/statistics/
