Company Defeats Cancellation Claim by Proving Years of Perfume Trademark Use

Case Summary: A competitor filed a non-use cancellation action against the defendant's perfume trademark, arguing it was not in genuine use. The court dismissed the claim after expert inspection confirmed continuous commercial use across Classes 3 and 35 for a period spanning five years prior to the filing date.

Background

The plaintiff had previously had its own trademark applications rejected following oppositions filed by the defendant. In retaliation, it filed a non-use cancellation action under Article 9 of the Turkish IP Code (SMK), arguing that the defendant's registered mark in Class 3 (cosmetics) was not being genuinely used.

Proof of Use: Expert Findings

An expert panel conducted an on-site inspection of the defendant's commercial records, sales invoices, and product samples. The expert confirmed:

• The defendant had been producing and selling perfume, cologne, air fresheners, body splash, and room sprays since its inception;
• The trademark appeared on invoices and product packaging;
• Dealership agreements had been entered into between 2018 and 2021;
• The use was genuine commercial activity, not token use.

The Perfume-vs-Cosmetics Classification Debate

The plaintiff argued that perfumery products fall under a separate heading from cosmetics in the Nice Classification, so perfume sales should not satisfy the cosmetic goods registration. The court held that the Nice Classification is an administrative tool and that perfumery is broadly accepted within the cosmetics sector — perfume use could therefore be recognised as genuine use of the Class 3 cosmetics registration.

Key Legal Principles

• In non-use cancellation proceedings, the burden of proving genuine use rests with the trademark owner (defendant).
• Expert analysis must cover commercial books, sales invoices, dealership agreements, and product samples to establish genuine use.
• Nice Classification is an administrative instrument; sector-wide acceptance determines whether sub-category use satisfies a broader class registration.
• Use must constitute "genuine commercial effort" — not merely token use — under Article 9 SMK.

Legal Notice: This article is a summary and commentary on a published court decision and does not constitute legal advice. Party and trademark names have been omitted for confidentiality.