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Turkiye

Case law on Trade Secrets in Turkiye

Relevant topics related to the 2016 Trade Secret Directive (EU 2016/943)

Table of contents
  1. 1. Requirement to undertake reasonable steps to keep the information secret - art. 2(1)(c)
  2. 2. Reverse Engineering - e.g. art. 3(1)(b)
  3. 3. Infringing products - e.g. art. 2(4) and 4(5)
  4. 4. The (IP-like) catalogue of remedies - e.g. art. 10 and 12
  5. 5. Exceptions / allowed uses (and their relationship to contractual secrecy provisions) - art. 1 and 5
  6. 6. Secrecy in court proceedings (“confidentiality club”) - art. 9
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1. Requirement to undertake reasonable steps to keep the information secret - art. 2(1)(c)

Trade secrets are not directly regulated and defined under Turkish legislation. According to Article 2, subparagraph a) of the Draft Law on Trade Secrets, Bank Secrets and Customer Secrets, which has not yet been enacted, a trade secret is defined as "the internal organizational structure and organization, financial, economic, credit and cash situation, research and development activities, operational strategy, sources of raw materials, technical characteristics of production, pricing policies, and marketing tactics of a commercial enterprise or company, which are known and obtainable only by a certain number of its members and other officials, which are likely to be damaged especially if they are learned by competitors, and which should not be disclosed to third parties and the public”.

In its jurisprudence, the Supreme Court defined a trade secret as “information that provides economic benefits to the real or legal person merchant against its competitors, is kept secret and the necessary measures are taken by the owner to keep it secret” (23rd Civil Chamber, M. 2016/6958, D.2019/4349, Date: 21.10.2019). Therefore, although there is no explicit provision, it is observed that in practice the courts require the necessary measures to be taken by the owner for the trade secret to be kept confidential as defining trade secret.

The Turkish Commercial Code (“TCC”) imposes an obligation on the merchant to act as a prudent businessperson in all commercial activities. The Supreme Court, in its established jurisprudence, accepts that  (i) every merchant should act like a prudent businessperson in his commercial activities, (ii) obligation to act like a prudent businessperson actually introduces an objective measure of care, and (iii) merchants are required to show the care expected from a prudent and foresighted businessperson operating in the same branch of trade, not the care that can be expected from him according to his own abilities and possibilities in his activities related to his commercial enterprise (M. 2003/13, K. 2003/340, Date: 07.05.2003). Therefore, it could also be concluded that taking the necessary measures in terms of keeping trade secrets is also within the scope of the merchant's obligation to act as a prudent businessperson.

2. Reverse Engineering - e.g. art. 3(1)(b)

Under Turkish Law, there aren’t any regulations or specific judicial decision on reverse engineering in terms of trade secrets. The court decisions referring to reverse engineering concerns protection of computer programs under the Law Numbered 5846 on Intellectual and Artistic Works. 

3. Infringing products - e.g. art. 2(4) and 4(5)

According to the TCC, unlawful disclosure of production and business secrets; in particular, dishonest behavior that evaluates or discloses to others the information and business secrets of the producer that it has secretly and unauthorizedly obtained or otherwise unlawfully learned, constitutes unfair competition. Since there is no legislation specific to trade secrets, regarding the infringed products, the issue will be addressed within the framework of unfair competition provisions of the TCC.

Pursuant to the Article 56 of the TCC, anyone whose customers, credibility, professional reputation, commercial activities or other economic interests have been damaged or may be damaged due to unfair competition may request the elimination of the material situation resulting from the unfair competition, the correction of these statements if the unfair competition has been made with false or misleading statements, and if it is inevitable for the prevention of infringement, the destruction of the means and goods that are effective in committing unfair competition.

It is observed that destruction of tools and goods is ordered by the courts, especially in cases of infringement of rights under the Industrial Property Law. For instance, Istanbul Intellectual and Industrial Rights Court ruled for the destruction of the tools that are effective in the commitment of unfair competition stating that “(…) regarding the products seized in the case file, to be rapidly destroyed at the expense of the plaintiffs” (M. 2021/149, D. 2021/211, Date: 30.04.2021). It was ordered to recall and destroy the products infringing the plaintiff's trademark rights in the decision. 

4. The (IP-like) catalogue of remedies - e.g. art. 10 and 12

In case of infringement of a trade secret, persons whose interests are or may be damaged may request the determination of whether the act is unfair, the prevention of unfair competition, the elimination of the material situation resulting from unfair competition, the correction of these statements if the unfair competition has been made with false or misleading statements, and if it is inevitable to prevent the infringement, the destruction of the means and goods that are effective in the commitment of unfair competition, the compensation of the damage if there is fault and the non-material damage if conditions in the general provisions of Law of Obligations are met. 

The aforementioned lawsuits shall be time-barred one (1) year from the day on which the party entitled to file lawsuit learns of the infringement, and in any case three (3) years from the infringement. If the unfair competition constitutes a criminal offense subject to a longer statute of limitations under the Turkish Criminal Code, this period shall also apply to civil proceedings.

If the act of unfair competition is committed by employees, these lawsuits can also be filed against such employees. 

5. Exceptions / allowed uses (and their relationship to contractual secrecy provisions) - art. 1 and 5

According to the Draft Law on Trade Secrets, Bank Secrets and Customer Secrets, which has not yet been enacted:

  • Pursuant to Article 3, disclosure of information that is obliged to be publicly disclosed according to the provisions of the laws, the written consent of the owner of the secret regarding the disclosure of the secret, and the fulfillment of legal obligations, does not constitute a violation of the Law.
  • Pursuant to Article 4; trade secrets may be requested by the Grand National Assembly of Turkey, Courts and Public Prosecutor's Offices, provided that the requesting public institution or organization states the reason for the request and the basis of its authority.
  • Pursuant to the Article 5, the owners and holders of the secrets covered by the Law are obliged to provide confidential information and documents to the Grand National Assembly of Turkey, courts and public prosecutor's offices. 

Secrets submitted to the relevant authority shall not be used by public officials and other persons who learn the secret to benefit themselves or benefit/harm others. The obligation of the relevant persons shall continue even after their resignation from office as long as the confidential nature of the information and documents continues.

6. Secrecy in court proceedings (“confidentiality club”) - art. 9

Pursuant to Article 28 of the Code of Civil Procedure, part or all of the hearings may be held in secret if there is public morality or public security or a superior interest worthy of protection of the persons involved in the proceedings makes it absolutely necessary, upon the request of the person concerned or ex officio by the court. In general, in cases of public morality or public safety, or in cases where there is a superior interest worthy of protection, courts decide to hold the hearing in secret as an exception to the principle of publicity. For instance, in the decision of the 2nd Civil Chamber of the Supreme Court numbered M.2015/16788, D. 2016/9300 and dated 05.05.2016, it has been ruled that “Part or all of the hearings may be held in secret only in cases where public morality or public security makes it absolutely necessary, upon the request of one of the parties or ex officio by the court (Art. 28/2 of the CCP).”