Parallel Imports and the Trademark Exhaustion Doctrine in Turkey

If you lawfully source genuine branded goods abroad and offer them for sale in Turkey, can the brand's Turkish distributor sue you for trademark infringement? The answer lies in the doctrine of trademark exhaustion, set out in Article 152 of Turkey's Industrial Property Code (Law No. 6769, the "SMK"). For domestic and foreign businesses engaged in parallel trade and grey-market goods, this doctrine is both a powerful defence and a boundary that must be managed with care.

Article 152 SMK: The Exhaustion Principle

Article 152, titled "Exhaustion of the right," lays down the core rule in its first paragraph: once products protected by an industrial property right have been put on the market by the right holder, or by third parties with the right holder's consent, further acts concerning those products fall outside the scope of the right. In plain terms: once the trademark owner (or someone acting with their consent) has released a genuine branded item onto the market, the owner's control over those specific units of goods is "exhausted."

Exhaustion does not extinguish the trademark right as a whole; it merely prevents the owner from relying on that right to block the resale, distribution, and further circulation of those particular lawfully marketed goods. A buyer of a genuine product may therefore resell it freely, and the trademark owner cannot stop that trade by claiming a lack of authorisation. The underlying balance is straightforward: the owner has already captured the economic value of the goods on first sale, so re-asserting the right at every subsequent transaction would unfairly restrict the free movement of goods.

International Exhaustion in Turkey: The Key to Parallel Imports

For parallel imports the decisive question is territorial: does exhaustion occur only when goods are marketed in Turkey (national/regional exhaustion), or whenever they are first sold anywhere in the world (international exhaustion)? The European Union applies a regional regime limited to the EU/EEA, meaning genuine goods first sold outside the EEA cannot be parallel-imported into the EU.

The text of Article 152 SMK, by contrast, contains no limitation as to where the goods were put on the market; there is no "in Turkey" qualifier in the provision. The prevailing scholarly view and general practice read this silence as Turkey having adopted the international exhaustion principle: genuine goods first marketed with the right holder's consent anywhere in the world may, as a rule, be imported into Turkey and resold without infringing the trademark. Turkey's non-membership of the EU/EEA reinforces this reading. That said, the point has occasionally been debated in doctrine, so in every case documenting that the goods are genuine and were placed on the market with the owner's consent forms the backbone of the defence.

The Limit of Exhaustion: "Legitimate Reasons" and Altered Goods (Art. 152/2)

The exhaustion principle is not absolute. The second paragraph of Article 152 creates an express exception: the trademark owner has the right to prevent the commercial use of goods falling within the first paragraph where those goods have been changed or impaired by third parties. In other words, if the condition of the goods has been altered or degraded after they were first put on the market, the owner may oppose their further resale for legitimate reasons, and the exhaustion defence falls away at that point.

In practice this exception arises where packaging has been damaged, batch or serial numbers erased, warranty terms altered, the product repackaged in a way that harms the brand's image, or the goods degraded during storage or transport. In such situations the consumer encounters goods that are technically genuine but no longer in their original condition, damaging the trademark's reputation and its guarantee function. This is precisely where the parallel importer's greatest risk lies: importing genuine goods may be lawful, but interfering with them can collapse the defence.

Exhaustion as a Defence in an Infringement Lawsuit

In practice, exhaustion is most often raised as the defendant's defence in a trademark infringement action. When a trademark owner or exclusive distributor sues a parallel importer seeking a declaration of infringement, an injunction, and damages, the defendant can defeat the claim by proving that the goods sold were genuine products placed on the market with the right holder's consent, so that the right has been exhausted.

The allocation of the burden of proof is critical here. The defendant must establish the genuineness of the goods and that they were marketed with the right holder's consent; the owner, in turn, tries to break the defence by arguing under Article 152/2 that the goods were changed or impaired, or that they are in fact counterfeit. For this reason, documenting the supply chain (invoices, import records, an authorised chain of distribution) directly determines whether the defence succeeds.

Practical Guidance for Cross-Border Traders

1. Document genuineness: Keep the supply-chain records proving the goods are not counterfeit but genuine items produced and marketed with the trademark owner's consent.
2. Do not tamper with the goods: Leave packaging, labels, serial numbers, and warranty information intact; repackaging that harms the brand's reputation triggers the Article 152/2 exception.
3. Watch contractual restrictions: Territorial sales restrictions in distribution and licence agreements may affect you under competition and contract law independently of the exhaustion principle.
4. Be ready for customs objections: Keep your genuineness and consent documents on hand to respond quickly to customs detention requests.
5. Take local advice: The legitimacy of parallel imports depends on the type of goods and the facts; assess litigation risk in advance.

Frequently Asked Questions

Is selling genuine branded goods sourced abroad an infringement in Turkey? As a rule, no. If the goods are genuine items placed on the market with the right holder's consent, the trademark right is deemed exhausted under Article 152 SMK and resale does not infringe. The goods must not be counterfeit and their condition must not have been altered.

Does Turkey apply national or international exhaustion? The text of Article 152 contains no territorial limitation, and the prevailing view is that Turkey has adopted international exhaustion; genuine goods marketed with the owner's consent anywhere in the world may generally be parallel-imported into Turkey. This should be assessed on the facts of each case.

When can the trademark owner still block a parallel import? Under Article 152/2, where the goods have been changed or impaired (damaged packaging, erased batch numbers, harmful repackaging, altered warranty terms), the owner may oppose resale for legitimate reasons.

Does a territorial restriction in a distribution agreement override exhaustion? Exhaustion is a statutory principle and is difficult to contract out of; however, breaching contractual restrictions may raise a separate contract- and competition-law issue between the parties.

How Mona Hukuk Can Help

Parallel imports and trademark exhaustion require proving genuineness while technically assessing the Article 152/2 exception at the same time. At Mona Hukuk we advise domestic and foreign businesses engaged in cross-border trade on parallel-import risk analysis, supply-chain documentation, the exhaustion defence in infringement litigation, and customs objection procedures.

For consultation in Antalya, you can write to contact@monahukuk.com or call +90 (242) 606 14 32.