What Is Proof of Use? What You Need to Know to Protect Your Trademark
Trademarks that are not used within 5 years of registration face the risk of cancellation. What is proof of use, what documents are accepted, and how is a non-use defense made? All the details are in this article.
What Is Proof of Use?
Proof of use is the legal obligation to demonstrate that a registered trademark is genuinely being used for the goods or services covered by the registration. Under Article 19 of the Industrial Property Law No. 6769, if a trademark has not been genuinely used in Turkey within 5 years of registration, it may be cancelled upon request by third parties.
The purpose of this rule is to prevent trademarks that are not actually in use from 'occupying space' in the register and blocking competing entrepreneurs.
The 5-Year Use Requirement
The trademark owner is required to genuinely use the trademark for the registered goods or services within 5 years of registration. If this obligation is not met:
- Any third party may file a cancellation application with TÜRKPATENT or the Court of Intellectual and Industrial Property Rights
- In infringement proceedings, the opposing party may raise a 'proof of use' defense
- In opposition proceedings, the opposing party may first request proof of use
What Constitutes 'Genuine Use'?
Not every use qualifies as 'genuine use.' Courts and TÜRKPATENT evaluate the following factors:
- Commercial purpose: The use must be commercial in nature, aimed at gaining market share
- Continuity: Token or symbolic use is not sufficient
- Use in Turkey: Use only outside Turkey is generally not sufficient
- Conformity with registration: The use must correspond to the registered goods/service classes
Documents Accepted as Proof of Use
Documents that can be submitted as proof of use fall into two categories:
Primary Evidence
- Photographs of branded products and packaging samples
- Invoices, delivery notes, and sales documents
- Advertising and promotional materials (brochures, catalogs, newspaper ads)
- Website screenshots (with date stamps)
- E-commerce sales records
- Trade registry records and tax certificates
Supporting Evidence
- Social media posts and follower statistics
- Trade fair and event participation certificates
- Press coverage
- Consumer surveys and market research
- License or franchise agreements
The Proof of Use Defense in Infringement Proceedings
When you file an infringement lawsuit based on your trademark rights, the opposing party may raise a 'proof of use' defense. Under this defense, the trademark owner must prove that the mark has been genuinely used during the past 5 years. If they cannot prove this:
- The lawsuit may be dismissed
- The trademark may be cancelled, clearing the way for the opposing party
It is therefore critical to ensure that your proof of use evidence is current and robust before filing an infringement action.
Partial Cancellation: Some Classes May Be Cancelled
If your trademark is registered in multiple goods/service classes but used in only some of them, partial cancellation is possible. The unused classes may be cancelled while the trademark remains valid in the used classes. This poses a significant risk for companies that have adopted a broad registration strategy.
Non-Use Defenses: Proper Reasons
In some cases, non-use of a trademark may be justified by 'proper reasons.' Courts may accept the following as proper reasons:
- Import or export restrictions (by government decision)
- Mandatory administrative approval processes (in sectors such as pharmaceuticals and food)
- Force majeure events (earthquake, fire, pandemic)
- Severe economic crisis or wartime conditions
Ordinary commercial difficulties, financing problems, or market conditions are not accepted as proper reasons.
Practical Tips for Protecting Your Trademark
- Begin use promptly: Start genuine use before the 5-year deadline following registration
- Systematically preserve evidence: Archive invoices, photographs, and promotional materials in chronological order
- Keep your website and social media active: Digital use also counts as important evidence
- Prune unused classes: Focus on classes you actually use rather than broad registrations
- Conduct periodic audits: Review your proof of use evidence every 2–3 years
Frequently Asked Questions
Can a cancellation action be filed before 5 years have passed?
No, a cancellation action based on non-use can only be filed after 5 years have elapsed since the registration date. If 5 years have not yet passed since registration, cancellation cannot be requested on this ground.
Must I use the trademark myself?
No. Allowing a third party to use it under a license agreement also constitutes valid use. However, it is advisable for the license agreement to be in writing and for the trademark owner to maintain oversight.
Does using the trademark on social media count as use?
Yes, using the trademark commercially on social media in connection with goods or services — selling to followers, advertising, promoting products — can be considered genuine use. However, it may not be sufficient on its own; supporting it with other commercial evidence is recommended.
How long does a cancellation action take?
Cancellation proceedings before TÜRKPATENT typically take 1–2 years, while court proceedings may take 2–4 years. Preliminary injunction orders can either extend or shorten the process.
