Counterfeit Perfume Packaging and Components in Türkiye: Recent Developments in Criminal Trademark Enforcement
Counterfeit perfume enforcement does not always involve finished products ready for sale. In raids targeting manufacturers, warehouses and suppliers, authorities may instead encounter empty perfume bottles, caps, packaging materials, labels, molds/printing plates and other components bearing counterfeit trademarks, which are intended to be assembled or filled at a later stage.
Under the Turkish Industrial Property Code No. 6769 (“IP Code”), trademark protection is acquired through registration. Article 7 grants the trademark owner the right to prevent unauthorized use of an identical or similar sign and expressly recognizes affixing the sign to goods or their packaging as a form of trademark use that may be prohibited. Article 29 identifies unauthorized use falling within Article 7, as well as counterfeiting a trademark, as acts of trademark infringement.
Where the infringement is subject to criminal proceedings, Article 30 provides for criminal liability for persons who, by infringing another party’s trademark rights through identity or likelihood of confusion, produce, offer for sale, sell, import, export, purchase for commercial purposes, possess, transport or store goods. Importantly, Article 30 also requires the trademark relied upon for criminal liability to be registered in Türkiye.
Some recent decisions of the Istanbul Regional Court of Appeal (“RCoA”) have approached these components as separate goods and focused on whether the particular component is itself covered by the relevant trademark registration. This approach may have significant consequences for anti-counterfeiting enforcement in the perfume sector, particularly where counterfeit production is detected at an early stage.
In our view, this interpretation is narrow. Components specifically manufactured and bearing counterfeit trademarks for use in counterfeit perfume production should not be considered entirely independent from the finished perfume merely because the enforcement action takes place before the product has been assembled or filled.
Recent Decisions in Türkiye
In one recent case concerning empty perfume bottles and printing plates/molds, the RCoA overturned a conviction and held that it should be determined whether empty perfume bottles were included within the goods covered by the complainants’ trademark registrations. The RCoA stated that if empty perfume bottles were not covered by the registered goods, the criminal offence would not be established.
Following the remittal, however, a supplementary expert report concluded that the empty bottles formed part of the economic and commercial integrity of the perfume and constituted integral components of the finished product. The IP Criminal Court of First Instance agreed with this assessment and, accordingly, again convicted the defendant.
Different outcomes have also been observed at the first-instance court level after the RCoA’s decisions in proceedings concerning perfume packaging materials and components, indicating that the judicial approach is currently not uniform.
Our Assessment
Counterfeit perfume production generally takes place in stages. Bottles, caps, packaging materials, labels and other components may be manufactured and branded separately before being brought together and filled.
In our view, the legal assessment should therefore consider not only the standalone classification of the seized component, but also its intended use and its economic, commercial and functional relationship with the finished perfume.
Otherwise, substantially the same counterfeit activity may be treated differently depending merely on whether the authorities intervene before or after the final assembly of the product.
Comparative Perspective
A similar focus on the relationship between packaging and the finished product can be seen in other jurisdictions.
Article 11 of Directive (EU) 2015/2436 expressly allows trademark owners to prohibit certain preparatory acts involving trademark-bearing packaging, labels, tags and other materials where there is a risk that they may be used in an infringing manner.
Similarly, 18 U.S.C. § 2320 expressly extends U.S. federal criminal trademark protection to counterfeit-marked materials such as labels, wrappers, boxes, containers and packaging, even where these materials have not yet been incorporated into the finished counterfeit goods. Importantly, the provision focuses on whether such materials are designed, marketed or otherwise intended to be used on or in connection with the goods for which the trademark is registered. Accordingly, the assessment is not limited to whether the packaging or component, considered on its own, falls within the goods covered by the trademark registration; its intended connection with the registered finished product is also relevant.
Although these provisions are based on different legal frameworks, they provide a useful comparative perspective by recognizing the relevance of the intended connection between the component and the protected finished product.
Practical Recommendations
Until a more uniform judicial approach develops in Türkiye, trademark owners may consider reviewing their existing portfolios to identify whether components frequently encountered in counterfeit operations are already covered and, where genuine gaps exist, filing targeted supplementary applications.
Such filings should be regarded as precautionary enforcement measures, rather than an acknowledgement that existing Class 03 protection is legally insufficient.
Conclusion
Recent decisions show that the treatment of components used in counterfeit perfume production is not yet uniform in Türkiye. While the judicial approach continues to develop, we consider that the intended use of such components and their economic, commercial and functional relationship with the finished product should form part of the assessment.
A more consistent approach in this area will be important to ensure effective enforcement at earlier stages of counterfeit perfume production, where bottles, caps, packaging and other components may be manufactured and stored separately before final assembly.
