The World Health Organization (WHO) assessed that coronavirus disease 2019 (COVID-19) can be characterized as a pandemic on March 11, 2020. After this assessment, serious measures were adopted worldwide in an attempt to prevent further spread of the virus. In Turkey, the regulation regarding the Suspension of Judicial Time Limitations (Law No. 7226) was adopted to prevent the propagation of the virus, alongside other precautions. According to provisional article 1 of Law No. 7226, all the periods related to the birth, use, or termination of a right, including filing a lawsuit, initiating enforcement proceedings, application, complaint, appeal, notice, notification, submission and prescription periods, foreclosure periods, and mandatory administrative application periods are suspended until June 15, 2020, to prevent any loss of right as a result of the COVID-19 pandemic. It means that the periods related to those proceedings will extend for 85 days. This arrangement engendered some uncertainties in practice, although it has many positive effects. One of them is whether the grace periods specified in Turkish Industrial Property Law (IPL) will be suspended according to this law and whether all the grace periods in IPL will be handled in the same way. We have handled the grace periods in two ways in this study: the grace period related to the non-use of the trademark and the patent and the grace period granted before the patent and design application.

The protection of a trademark begins with its registration according to IPL. However, the trademark must be put in genuine use for the person to retain its rights. Pursuant to IPL Article 9/1, if within 5 years following the date of registration, the trademark has not been put to genuine use in Turkey by the trademark proprietor in connection with the goods or services in respect of which it is registered, or if such use has been suspended during an uninterrupted period of five years, the trademark shall be revoked, unless there are appropriate reasons for non-use. The IPL regulates that the non-use of a trademark results in its revocation following the EU regulations (IPL art. 26/1-a, corresponding to article 18 of the EU trademark regulation dated June 14, 2017, and numbered 2017/1001). Similarly, the patent has to be used to preserve its monopoly. However, the sanction stipulated for the non-use of a patent is different. Pursuant to Article 130/2 IPL, within three years after the grant decision related to a patent is published in the Bulletin or within four years after the date of the patent application, whichever expires later, as from the date of expiration of that period, the relevant person may request to be given a compulsory license because invention forming the subject of patent was not started to be used or serious and real initiatives have not been made for use of the patent or use of the patent was not at a level to meet the needs of the national market on the date of the license request. Even if the sanctions are different for the trademarks and patents, the basic idea is the same, to protect the rights, the right holder has to use its trademark or patent. However, in case the right holder begins to use its trademark/patent after the foreseen period, the right holder will obtain full power over its rights. It must be noted that the person who lapsed to use his or her rights will lose his or her rights if there is a foreclosure period. But in case of grace period for non-use, if the right holder begins to use his or her trademark/patent, he will be able to retrieve absolute power over his rights even after the period ends. In this case, it has to be noted that the grace period for non-use is not a foreclosure period and will not be covered by Law 7226. It also has to be noted that the COVID-19 pandemic is not an appropriate global reason for non-use, and only persons who are affected by the pandemic should assert it as a proper reason for non-use. Only affected persons can assert it as an appropriate reason for non-use and escape the revocation proceedings in this case. 

IPL Article 57/2 sets forth a grace period for the disclosure made by the right holder of a design, stating that if a design for which protection is claimed has been made available to the public during the 12 months preceding the date of filing of the application or if priority is claimed on the date of priority by the designer or his successor in title, or a third person in consent with the designer or his successor, or abuse of the relation with the designer or his successor, a disclosure shall not affect the novelty or individual character. A similar rule is applied to the patents. According to IPL Article 84, the novelty of a patent or a utility model will not be affected in the cases that a disclosure was made within 12 months before the application date or within 12 months before the date of priority right if priority right was demanded. As for the grace period granted in favor of the right holder of a design or patent, granting novelty of the product despite the disclosure made prior to the application, it should be noted that the period is a foreclosure period because if the application is not made in the prescribed period, the applicant will lose his or her rights to apply. As for the grace period granted before the application, this is a foreclosure period, and the 12 months should be considered covered by Law 7226.

We concluded that the grace period for non-use is not a foreclosure period at the end of the study, so this period is not covered by Law No. 7226. But the grace period granted for the disclosure made before the application of the design and patents is qualified as a foreclosure period, and thus, it falls within the scope of Law No. 7226.