A new decision taken by the Turkish Constitutional Court on the alleged similarity of emblems of two political parties has drawn our attention due to containing some aspects fitting into trademark likelihood of confusion assesment.
Turkish text of decision of the Turkish Constitutional Court published in the Official Gazette on June 17, 2022 may be retrieved from this link.
A newly established political party, Türkiye'nin Sesi (SES) (Voice of Türkiye) starts to use the following party emblem:
However, believing that the pigeon figure included in that emblem verges upon the pigeon figure in their own party emblem, as depicted below, in both colour and drawing, Demokratik Sol Parti (DSP) (Democratic Left Party) officials ask SES Party to stop using the related emblem.
Parties come up with mutual explanations and statements and at the end, SES Party does not accept the request to cease using their emblem (see 1, 2).
Since SES Party does not change its emblem, DSP resorts the issue to the jurisdiction, and Secretary General of the Party claims and requests a court judgment for nullification of emblem of Türkiye'nin Sesi Party and its deletion from the registry of political parties on the ground of violation of article 96 of the Political Parties Law no. 2820.
Article 96 of the Political Parties Law provides that: "Names, emblems, nicknames, badges or similar other insignia of political parties permanently shut down by the Constitutional Court or registered in the registry of political parties cannot be used by another political party exactly or in such manner to cause confusion, nor may the far-famed flags, emblems and pennants of the old Turkish states be used by political parties." Hence, the basic ground of claims of DSP is the confusing similarity of the emblem of subsequently established Türkiye'nin Sesi Party with the emblem of DSP.
Another relevant provision of the aforesaid Law is third paragraph of Article 104 thereof: "Against a political party which accepts or uses in its party bylaw any one of the names, emblems or nicknames of political parties permanently shut down by the Constitutional Court or registered in the registry of political parties exactly or in such manner to cause confusion, an application is filed in writing by the Office of the Chief Public Prosecutor ex officio or by the affected political party directly to the Constitutional Court. If, in a review to be conducted on said names, emblems and nicknames according to the priority of registration and entry in the registry of political parties within maximum thirty days following the date of application, a violation of first paragraph of article 96 of this Law is detected, the Constitutional Court decides and orders the nullification of names, emblems and nicknames in conflict, and the deletion of them from the registry of political parties."
Upon review of claims of Demokratik Sol Party, the Office of the Chief Public Prosecutor in the Supreme Court of Appeals expresses its opinion as follows: "... that pigeon figures in both emblems are similar in terms of size, and both are white coloured, and wings of both of them are open, and they are flying towards the same direction, and thus, the emblem of Türkiye'nin Sesi Party is confusingly similar to the emblem of Demokratik Sol Party, and this may in turn lead to confusion of these two political parties, and for these reasons, it is required to hold and judge the nullification of the emblem of Türkiye'nin Sesi Party and its deletion from the registry of political parties."
SES Party's defence is based upon the following arguments: "... that as long as there are some different features distinguishable and recognizable at the first glance therebetween, to argue that only the use of the same symbol in emblem will cause confusion will surely lead to an unnecessary and disproportionate restriction of the Constitutional principles regarding free activities of political parties and their right to freely select their emblem, as an extension of said principles, and that wing structures and tail shapes of pigeon figures contained in emblems of their own Party and Demokratik Sol Party are different from each other, and also that the pigeon figure in the emblem of their Party carries an olive branch, and furthermore, there is no connexion between their Party and Demokratik Sol Party in terms of any historical or political heritage as well, and for these reasons, it is required to decide dismissal of the claim for nullification of emblem of their Party and for its deletion from the registry of political parties."
Thereafter, the Constitutional Court accepts and honours the claims of DSP by majority of votes in its decision no. 2022/1 in case file no. 2022/2 (Miscellaneous) dated April 21, 2022, and on the ground of the emblem being used by Türkiye'nin Sesi Party being in conflict with Article 96 of the Law no. 2820, decides and orders the nullification of emblem of said Party and its deletion from the registry of political parties.
It is attention grabbing to note that in its decision, the Constitutional Court often refers to the "confusion" concept and the similarity of figures, and that the analysis made by the Court in relation therewith approaches an analysis of likelihood of confusion between trademarks. Now and therefore, it will be useful to quote some important parts of the decision of the Constitutional Court:
"6. By the aforementioned law provisions (Articles 96(1) and 104(3) of the Law no. 2820), a political party is forbidden to use the emblem of another political party registered in the registry of political parties exactly or in such manner to cause confusion. However, there is not any legal obstacle in use by a political party of a figure or shape contained in the emblem of another political party registered in the registry of political parties, providing that it does not lead to any confusion therebetween.
7. It is extremely natural for political parties to use in their emblem some certain shapes or figures reflecting and summarising the ideals targeted by them since such shapes or figures make their messages addressed to electors more understandable and demonstrate that they impropriate and embrace the values deemed important by the electorate addressed by them. However, political parties are required to use these shapes or figures in such manner not to cause confusion with emblems of other political parties registered in the registry of political parties before them. Emblem to be used by a political party must not give the impression of another political party, and must not pave the way for mistakes or misunderstandings. Just like names and nicknames, emblems of the political parties must also be clear, and must not cause any person to confuse the related political party with another political party.
8. A review of the emblem of the claimant Demokratik Sol Party reveals that its emblem contains a pigeon figure with both of its wings open on a rectangular blue background, and this figure is surrounded by a white rectangle, while the emblem used by Türkiye'nin Sesi Party contains a pigeon figure with both of its wings open, carrying an olive branch in its mouth, on an ultramarine blue background. Although in the emblem used by Türkiye'nin Sesi Party, pigeon figure carries a green olive branch in its mouth differently from the other emblem, given that the dominating figure of both emblems is pigeon, and that in both of the party emblems, pigeon figure is approximately of the same size, the same colour, and their wings are open in flying position towards the same direction, it is considered that these emblems may cause electors to be misguided.
9. In reliance upon the determinations cited above, upon a joint assessment made on the emblems used by Demokratik Sol Party and Türkiye'nin Sesi Party, we have come to the conclusion that the emblem being used by Türkiye'nin Sesi Party is confusingly similar to the emblem used by Demokratik Sol Party, and therefore, it is not possible to distinguish its emblem from the emblem of Demokratik Sol Party without any hesitation.
10. On the grounds and for the reasons explained in the preceding paragraphs, as it is concluded that the emblem being used by Türkiye'nin Sesi Party is contrary to Article 96 of the Law no. 2820, it is required to accept and honour the claims for the nullification of emblem of said Party and the deletion of it from the registry of political parties."
At this point, if we try to examine the analysis made by the Constitutional Court on similarity of political party emblems by an experimental approach and within the frame of basic principles of the trademark likelihood confusion analysis:
Similarity of Signs: In paragraph 8 of its decision, the Constitutional Court explains for which reasons the subject signs are found to be similar (.in both of the party emblems, pigeon figure is approximately of the same size, the same colour, and their wings are open in flying position towards the same direction .).
Dominant Factor: In paragraph 8 of the decision of the Constitutional Court, the dominant factor in emblem of the newly established party is determined with the words ".the dominating figure of the emblem is pigeon.".
Related Segment of Public: In paragraph 7 of its decision, the Constitutional Court points out the segment of public covered by its analysis, and designates the electorate of related political parties which may constitute a rather heterogeneous population group with the following sentence: "It is extremely natural for political parties to use in their emblem some certain shapes or figures reflecting and summarising the ideals targeted by them since such shapes or figures make their messages addressed to electors more understandable and demonstrate that they impropriate and embrace the values deemed important by the electorate addressed by them." This designation undoubtedly refers to average consumers having an average level of attention in the language of trademark reviews.
Level of Reputation: The decision does not mention about the recognition in public of the party emblem of earlier date, and about its reputation developed in past years, and hence, does not engage in an assessment on the level of reputation.
Distinctive Power: The decision does not mention about the height of distinctive power of the party emblem of earlier date due to its genuineness.
Similarity of Goods and/or Services: The kind of dispute does, of course, not require an assessment focused on this matter.
Likelihood of Confusion: In paragraph 9 of its decision, within the frame of grounds, reasons and determinations listed in the decision, the Constitutional Court has found out the existence of likelihood of confusion, and stated that it is not possible to non-hesitantly distinguish the emblem of SES Party from the emblem of DSP with the following phrase: "In reliance upon the determinations cited above, upon a joint assessment made on the emblems used by Demokratik Sol Party and Türkiye'nin Sesi Party, we have come to the conclusion that the emblem being used by Türkiye'nin Sesi Party is confusingly similar to the emblem used by Demokratik Sol Party, and therefore, it is not possible to distinguish its emblem from the emblem of Demokratik Sol Party without any hesitation."
The Constitutional Court has taken its decision by majority of votes. Four out of fifteen members of the Constitutional Court have voted against the vote of majority. All of the four dissenting opinions are primarily based upon the alleged non-similarity of subject signs.
A joint assessment of the majority opinion and the dissenting opinions demonstrates that even the members of the Constitutional Court who are required to be accepted to be hierarchically among the most competent legal experts of Türkiye disaccord with each other on the matter of similarity of signs. Even this fact alone proves that the review of similarity of trademarks is a field which is dominated by subjective points of view, and where objectivity can be reached comparatively difficultly.
With respect to the dispute in hand, I would like to express my personal opinion, and to state that white pigeon symbol is a political symbol which universally symbolizes the peace, and therefore, is used commonly all over the world and in Türkiye, and for this reason, it is pretty acceptable and normal for political parties to choose this figure as a symbol, and that political organisations using the white pigeon figure universally symbolizing the peace are required to consider the use of this pigeon figure symbol by others as well reasonable, and that the pigeon figures used in emblems of two political parties in concern have indeed been stylized in an easily distinguishable manner, and for these reasons, these emblems cannot be said to be confusingly similar.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
