Competition laws and intellectual property ("IP") laws have complementary goals such as maximizing consumer welfare and facilitating dynamic efficiency. That said, IP rules mainly aim to protect "individual interest" whereas competition rules protect "public interest". Still, protecting IP rights also serves the public interest by guaranteeing the continuity of innovations.
As a result of the intensive work conducted throughout the years, a unified intellectual property law has been codified in Industrial Property Law No. 6769 ("the IP Law"), which entered into force on 10 January 2016 and collectively regulates in detail trademarks, geographical indications, designs and patents, in compliance with European Union regulations. Prior to the creation of the IP Law, the entirety of the intellectual property regime was implemented through separate statutory decrees. Competition in Turkey, on the other hand, is regulated by Law No. 4054 on the Protection of Competition ("Competition Law"), published in the Official Gazette on 13 December 1994.
Following the introduction of the IP Law, the interaction between competition law and intellectual property law in Turkey still remains unregulated, and both regimes obey separate legislation. Turkish intellectual property law seeks to protect the owners' exclusive control over their intellectual assets and provide the right holder with monopolistic and exclusive rights on a given intangible asset (such as trademark, copyright, etc.). Accordingly, IP right holder has the power to deprive, restrict and restrain competition in the relevant market; to the extent competitors' acts violate the right holder's lawful IP rights. On the other hand, the Turkish competition law aims to ensure effective competition in the marketplace and prevent anticompetitive actions such as cartels and abuse of dominance, etc.
Competition laws may interfere when IP rights are used to abuse dominance or as a means to engage in a restrictive agreement.
Pursuant to the Guidelines on Abuse of Dominance, an undertaking's refusal to supply not only the goods or services it produces, but also the tangible or intangible business inputs in its possession to other undertakings, is considered as a refusal to supply. Accordingly, "intangible business inputs or information which are protected or unprotected by IP rights" are deemed among the inputs that may be subject to abuse of dominance (Guidelines on Abuse of Dominance, para. 38.). Also, according to the Board, refusal to license IP rights is a subcategory of refusal to supply (Lüleburgaz (7 September 2017, 17-28/477-205); Karabük Demir Çelik (7 September 2017, 17-28/481-207); Digital Platform (3 May 2012, 12-24/710-198)).
Other examples where competition laws and IP rights overlap include charging excessive prices for or prevent access to protected intangible assets and denying reasonable access/use in cases where the IP right amounts to an essential facility. Similar abusive or restrictive conduct may have the unintended effect of preventing the introduction of a new product or monopolization of a secondary market. To that end, compulsory license is one of the most essential concepts in the interface between antitrust enforcement and IP rights.
Compulsory license is a means to minimize competitive concerns that result from the IP right holder's monopolistic power in a manner inconsistent with the public interest. They compel the IP right holder to allow third parties who are willing to use the intangible asset (creation, invention, design etc.) to use the right, on condition that the intended use serves public interest. IP rights do not confer an absolute protection and in some circumstances a third party may obtain access to and use the protected asset in order to compete in the market. A company's refusal to compulsory license a patent or a trademark can be regarded as abuse of dominance under certain conditions.
Indeed, under Article 6 of the Competition Law, all dominant undertakings are bound by the obligation not to abuse their dominant position. Therefore, the general provisions of Article 6 would also apply to refusal-to-license situations. Refusal to license can be an antitrust violation, as established by the landmark Turkcell/Telsim (09.06.2003; 03-40/432-186) decision, in cases where (i) the prevention of the creation of a new product which the IP right holder did not offer and for which there was a potential consumer demand, (ii) the refusal is not justified, (iii) the IP right holder reserves to himself a secondary market by excluding all competition on that market, (iv) the undertaking requesting access to the IP rights is ready to pay a reasonable and non-discriminatory indemnity for access; and (v) there exists no reasonable justification for denial.
Although over a decade has passed since the Turkcell/Telsim case, the Board's most recent decisions on this point reaffirm the position taken; see, for instance, the Board's decisions Türk Telekom (09.06.2016; 16-20/326-146), Krea İçerik Hizmetleri (09.09. 2015; 15-36/544-176); Surat Basim/Zambak (19.03.2013; 13-15/230-114); and Digital Platform (03.05.2012; 12-24/710-198).
