Trade secret laws and regulations in Turkey

No.

Yes, the protection of trade secrets is regulated under the Turkish Commercial Code No. 6102 (“TCC”), in particular within the context of “unfair competition”, and further under the Turkish Criminal Code No. 5237 (“Criminal Code”) with respect to the disclosure of trade, customer and banking secrets.

In addition, the Turkish Ministry of Justice has been working on a draft law entitled “The Draft Law on the Protection of Trade, Banking and Customer Secrets” (the “Draft Law”), which has not yet been duly enacted.

As per the decision of the 11th Chamber of the Turkish High Court of Appeals numbered 2007/5755, a trade secret has the following characteristics:

1. the relevant trade secret should not be publicly available; and
2. the relevant trade secret should not be known in the relevant sector by the competitors of the owner of the trade secret.

Furthermore, the definition of “trade secrets” is introduced under the Draft Law as follows: “Information and documentation, which is known or accessible exclusively by a limited number of members and/or other personnel of a commercial undertaking or a company and which relate to the field of activity of such commercial undertaking or a company, which will not be disclosed to third parties or competitors as it would likely cause damages to such commercial undertaking or company, which have vital importance in terms of the relevant undertaking’s or the company’s success in its economic endeavors and productivity and which relate to the undertaking’s or the company’s internal foundation and organisational structure, economic standing, loan and cash status, research and development activities, strategy, raw material sources, technical specifications relating to production, pricing policies, marketing tactics and expenses, market share, retail and wholesale customer potential and network, contractual connections, which are subject to consent or not and other similar information and documentation.”

No. 

There is no specific regulation dealing with this issue under Turkish law.

There is no specific regulation dealing with this issue under Turkish law.

There is no specific regulation dealing with this issue under Turkish law.

The TCC does not provide an exhaustive list regarding actions, which may constitute acts of unfair competition, including the disclosure of trade secrets, but rather provides examples to this effect. Actions and commercial practices that are against good faith and are of a misleading nature would constitute unfair competition. 
Furthermore, the Criminal Code sets forth that the disclosure of trade secrets to unauthorised parties by persons who have learned of such trade secrets due to their attribution, profession, duty or occupation would be deemed as a criminal conduct; these parties would be subject to a prison sentence and a judicial fine.

Yes, the owner of a trade secret is entitled to apply to a competent court for an interim injunction regarding the collection/preservation of evidence of trade secrets infringement, provided that the proprietor has proved that a delay may cause substantial damage or that due to changes that may occur, it would be significantly difficult or impossible to secure a legal claim under the law (Article 389 of the Civil Procedural Law No. 6100 (“CPL”)). 

Article 56 of the TCC allows persons who have suffered damages or who may be exposed to the risk of such damage to apply to the competent court for the following:

1. Declare as to whether the defendant's action is unfair;
2. Prevent unfair competition;
3. Removal of the material condition caused by the action of unfair competition;
   1. rectification of statement if the unfair competition is committed by wrong or misleading statements; and 
   2. destruction of the means used in the unfair competition action, provided that it is unavoidable to prevent the infringement;
4. In the case of a faulty action, compensation of damages;
5. Should the conditions set forth by Article 58 of the Turkish Code of Obligations be met (i.e. damages to incur one’s personal rights), there will be compensation of non-pecuniary damages.

Additionally, interim injunctions may also be sought in relation to the unfair competition action if the conditions set forth by the above-mentioned Article 389 of the CPL are met. In addition, the customs office may also confiscate the goods that constitute unfair competition as an interim injunction (Article 61(2) of the TCC). 

The applicant must initiate a lawsuit with regards to the subject matter of the interim measure within two weeks starting from the applicant’s request for the application of the interim measure (Article 397(1) of the CPL). 

Refer to the answer provided for “What specific interim and final measures and remedies are available in the event of an infringement of trade secrets?”.

As per Article 390(2) of the CPL, a judge may order a preliminary injunction without hearing the defendant if immediate protection of the applicant’s rights is required. Other than the aforementioned, ex parte hearings are not applicable for final measures or remedies.

In general, the claimant carries the burden of proof as to the amount of the damages, and the court renders a judgment following the evidence provided based on its discretion. The court is also entitled to calculate the compensation based on the probable benefits that would be gained by the infringer over the unfair competition action. 

As per Article 60 of the TCC, the limitation period for initiating the lawsuits indicated under Article 61 is one year following the date the suffering party has become aware of the infringement and this period expires in any event after three years following the date the infringement occurred. 

The prescriptive period is interrupted (i) if the infringer acknowledges the claimant’s claim and if the infringer makes interest payments or partial payments, gives an asset as a pledge or provides security; or (ii) due to filing enforcement proceedings, submission of a statement of claim or defence to a court or arbitral tribunal, or a filing for insolvency.

Furthermore, the prescription is suspended, among others (i) in respect of the claims of spouses against each other for the duration of the marriage; (ii) for as long as it is impossible to bring the claim before Turkish courts. 

Additionally, Article 66(1)(e) of the Turkish Criminal Law ("TCL") stipulates a longer limitation period for events that constitute a criminal act under the TCL (i.e. disclosure of trade secrets to unauthorised parties by persons who have learned of such trade secrets due to their attribution, profession, duty or occupation (Article 239 of the Criminal Code)), which is eight years. 

As per the publicity principle set forth by Article 28 of the CPL, court proceedings and verdicts are open to the public. However, as per the mentioned provision, the court may also order the hearings to take place privately if it is necessary under the public order or morality.

Unfair competition provisions do not stipulate an explicit exception.

As per Article 329 of the CPL, the claimant of a maliciously initiated lawsuit could be liable to cover the litigation expenses, attorney fees and may be subject to a disciplinary penalty. There is no separate legal proceeding required for the application of this provision. 

Additionally, the defendant of the ill-founded lawsuit may also seek compensation if any damage incurred by it due to the ill intentions of the claimant.

Yes, although there are no specific provisions to this effect under Turkish law, within the employer's general obligations to supervise and protect their employees, employers are obligated to provide a certain protection to whistleblowers or employees who report wrongdoing at the workplace. To elaborate, such employees might not be terminated due to such reporting, their identity may not be revealed to other employees, the terms of their employment may not be amended in their detriment or they might not otherwise face reprimand (e.g. mobbing).

Yes, but only if such infringement occurred as part of the duties undertaken by an employee for his employer within the framework of employment between the said employee and employer.