Under Article 6(9) of Industrial Property Code No. 6769, concerning relative grounds for refusal in trademark registration: “Trademark applications filed in bad faith shall be refused upon opposition.”
For a trademark application to be considered filed in bad faith, the applicant must have acted, at the time of filing, with an intention beyond the mark’s essential purpose and function — that is, with the aim of preventing the genuine rights holder from benefiting from the mark, or of unfairly benefiting from the mark’s reputation.
In CJEU Case C-529/07, it was held that the following are indicative of bad faith: the applicant seeking to register a trademark likely to be confused with a mark that they knew was already being used by a third party for identical or similar goods and/or services, with the intention of preventing that third party’s continued use of the mark and thereby unfairly benefiting from the situation. The decision identified the following as indicators of bad faith:
The sign for which registration is sought, and which is likely to be confused, being identical or similar to a sign belonging to a third party, of which the applicant was, or should have been, aware.
The applicant’s intention being to prevent that third party from continuing to use the sign.
The degree of legal protection enjoyed by the third party’s sign and by the sign for which registration is sought (ÇELİKEL Deniz, CJEU Decisions and Interpretation in Trademark Law (2nd ed.), Seçkin Publishing, Ankara 2021, pp.73-74).
According to the Advocate General’s opinion in the relevant CJEU case, the applicant’s intent at the relevant time is a subjective element that must be assessed by reference to the objective circumstances specific to the case. Accordingly, an intention to prevent a third party from entering the market may, in certain circumstances, be an element indicating bad faith on the applicant’s part — particularly where the applicant applies to register the mark despite having no intention to use it, and where it is clear that the sole aim is to prevent the third party from entering the market.
“In such a case, the mark does not perform its essential function — that is, guaranteeing the consumer or end user the ability to identify the origin of the goods or services concerned and to distinguish them, without confusion, from those originating elsewhere.” (C-456/01 P and C-457/01 P Henkel v OHIM [2004]) (Çelikel, p.71)
In such a case, the applicant’s sole aim is to benefit from trademark rights while unfairly competing with a rival using a sign that has, over that period, established a particular reputation and gained a certain level of distinctive protection.
The Turkish Court of Cassation General Assembly of Civil Chambers, in its decision numbered 2005/11-476, held that “since, under the provisions of the Turkish Civil Code, good faith is the rule and bad faith the exception, the party alleging bad faith must present evidence and grounds for it, and the local court’s reasoning cannot be relied upon absent such evidence and grounds. The claimant must prove that the defendant acted in bad faith, and the court must set out the evidence and grounds for such a finding” — underscoring the importance of proving bad faith.
Similarly, in its decision numbered 2008/11-501, the Court held: “First, it must be examined whether the defendant’s conduct constitutes a bad-faith trademark registration. Under the generally accepted understanding in trademark law, registrations and applications made by abusing the protection afforded by registration — contrary to its purpose — in order to unfairly benefit from another’s trademark, or for the purpose of warehousing (stockpiling marks without use), trademark trafficking, or extortion, are considered to have been made in bad faith. The existence of bad faith must be determined by reference to the specific characteristics of each individual case.”
Bad faith can also manifest itself through internet use. Meta tags (particularly “meta keywords” or “meta description” search-engine tags) do not directly determine ad placement, but can indirectly be used as tools of manipulation. Google Ads and similar search-engine advertising systems generally operate on keyword-based targeting — meaning that if a business includes certain terms (for example a competitor’s brand name) in its meta tags or on-page content, search engines may associate that page with those terms. In organic results, a competing product may then surface as a “similar product,” and advertising systems may likewise use those keywords as a signal of interest, potentially displaying a competitor’s advertisement. In other words, meta tags do not directly place an advertisement before the consumer, but by misleading the search algorithm they can create the effect of presenting a rival’s product as a “related result.”
This practice is known as “keyword hijacking” or “meta-tag infringement.” In courts such as the CJEU and US courts, unauthorized use of a trademark name as a meta tag may be treated as trademark infringement — particularly where a consumer who searches for a given brand name is redirected to a page for an imitation product, and where that redirection has the potential to mislead the consumer; in such cases, the conduct may be considered both trademark infringement and unfair competition.
Businesses generally cannot directly edit their own meta tags on major e-commerce product pages; however, they can influence the search algorithm by including brand names in product titles and descriptions. In addition, it is possible to target brand-related keywords such as a competitor’s mark in advertising networks like Google Ads, associating one’s advertisements with searches for that brand.
Written by: Deniz Çelikel • Patent and Trademark Attorney
This text is drawn from expert witness reports prepared by Deniz ÇELİKEL since 2010.
