COMMERCIAL LAW Dr. Özlem Döğerlioğlu Işıksungur 2013 Summer School Notes-Summary

COMMERCIAL LAW

Dr. Özlem Döğerlioğlu Işıksungur

2013 Summer School Notes-Summary

Article 11 of TCC

▫“An enterprise that will be operated permanently and independently aiming to generate income which exceeds the limit prescribed for the craftsman enterprises.”

DEFINITION of ENTERPRISE

COMMERCIAL ENTERPISE

The person who

operates the commercial

enterprise, in principal,

MERCHANT

Affairs related to Commercial

Enterprise, Commercial

Affair

Commercial Provisions are

applied to Commercial Affairs

The case is “commercial case” if it

is concerning both parties’ enterprises

Application of commercial

customs for the commercial affairs

Commercial Interest for the

Commercial Affairs.

First: Check whether there is a “commercial enterprise or not” If the answer is yes, then above mentioned results

•There are four components of commercial enterprise:▫Economic activity-

It must be “generate income oriented”▫It must be continuous▫It must be independent▫Its scope must exceed the craftman’s scope

of activities

ELEMENTS OF “COMMERCIAL ENTERPRISE”

• The main purpose and objective of commercial enterprise must be to generate income.

• What should be taken into consideration?▫ Purpose/Intention of the entrepreneur is of

importance▫ Result is not of importance (to profit or to lose

money).▫ Way of income spending is not of importance▫ Legal status of the person who operates

enterprise is not of importance Doctor/Engineer

ELEMENTS: 1-Economic Activity

•Commercial enterprise must have been established to operate continuously (not temprorary or fortuitous).

•What should be taken into consideration?▫Intention and nature of the undertaking

•Disruption of the operation?•Periodical activities?

Running school buses for the students during the periods when the schools are open

Operating hotels in winter

ELEMENTS: 2-Continuity

•The organisation must be independent from any other

•Independency for entrepreneur& enterprise

•Branches?•Agency?

ELEMENTS: 3-Independency

• Distinction concernig whether an enterprise is a commercial enterprise or craftsman enterprise shall be made according to the Council of Ministers Decree

• Currently such kind of decree is not be published

• Until its publication, legislation in effect shall be applied ( Decision No: 2007/12362- Official Gazette 21.7.2007, S. 26589)

ELEMENTS:4- Exceeding of the craftman’s scope of activities

•Article 15 of TCC

Craftman

Head office- Branch

Concept

A merchant has a commercial enterprise. BUT

A merchant may have more than one commercial enterprises

To have more client To give better service or .....

The relationship between/among these commercial enterprisesIndependent from each other ORDependent (Head Office – Branch)

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Kaynak: Sami Karahan, Ticari

İşletme Hukuku 2011

•Every commercial enterprise must have a head office (principal place of business)

• It is generally accepted that head office is the place from where all commercial, administrative and legal affairs of commercial enterprise are organised and conducted.

•The location of this place is important with regard to registration in the register of commerce, in determining the competent court

HEAD OFFICE IN TURKISH LAW

•Commercial enterprises operated by a real person---- head office can be different from the residence(domicile) of real person

•Commercial enterprises operated by a legal person---- head office is the place mentioned in the articles of association/charter

HEAD OFFICE IN TURKISH LAW

BRANCH

To qualify as a Branch : The unit

A. should be dependent to Head Office Head office and branch --- belongs to same real person or legal

person Branch cannot adopt a business policy independent from the head

office Loss and profit belongs to head office

B. should be independent from head office in its dealings with the third parties

C. should have its own place, management and accounting

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BRANCH

IMPORTANT!

▫Although it is not a branch, usage of “branch” term as if it is a branch

▫Seperated capital allocated to the branch▫Collection of cheques and draft by the

branch

▫The above mentioned points are not of importance to be a “branch”

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LEGAL CONSEQUENCES OF BEING BRANCH

A. Registration to Register of CommerceB. Registration to Chambers- registration to the

chambers where the branch takes placeC. Trade-name

Branches should use their Head Office trade names by mentioning that they are branchLegal person----Ziraat Bank Konak BranchReal person---- Neslihan Yargıcı Cevahir AVM Branch

D. Representation

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CONCEPT of “merchant”

•Regulated in Article 11-23 of TCC•Merchants:

▫Real (natural) persons▫Legal person

•In TCC, “merchant” concept regulated seperately from the point of “real person” and “legal person”

MERCHANTREAL (NATURAL)PERSONS LEGAL PERSONS

• Definition: Person who operates a commercial enterprise, at least in part,under his name.

• Elements:-Existence of a commercial

enterprise-Operation of the commercial

enterprise, at least in part -Operation of the commercial

enterprise, at least in part, under the name of the person concerned

• Commercial companies• Associations & Foundations

which operate commercial enterprise to achieve their targets

• Entities which are formed by State, Private Provincial Administration, Municipality, Village and other public corporations to be operated in a commercial manner or pursuant to their statutes of foundation to be managed according to private law

REAL PERSON merchant-DEFINITION

•Definition: (Article 12.1 TCC)▫The person who operates a commercial

enterprise, at least in part, under his name

ELEMENTS OF REAL PERSON MERCHANT

Commercial Enterprise

De facto operation

Operation under the name of the merchant

= MERCHANT

REAL PERSON merchant-CONDITIONS

• A- Existence of a Commercial Enterprise▫ General rule: To qualify as a merchant, existence

of commercial enterprise is the first condition

▫ Elements of commercial enterprise?BUT

A person who although has not established a commercial enterprise, enters into relationship with third parties as if he had formed a commercial enterprise, shall be held liable like merchant against third parties in good faith


•A- Existence of a Commercial Enterprise-CONTINUE▫Elements of commercial enterprise

Economic activity Continuity Independency Capacity


• B- Operation of the commercial enterprise ▫ What is the meaning of “ operation of commercial enterprise?

Establisment of an enterprise Enter into business dealings with third parties

▫ De facto operation▫ TCC Article 12/II

“Bir ticari işletmeyi kurup açtığını, sirküler, gazete, radyo, televizyon ve diğer ilan araçlarıyla halka bildirmiş veya işletmesini ticaret siciline tescil ettirerek durumu ilan etmiş olan kimse, fiilen işletmeye başlamamış olsa bile tacir sayılır”

The person involved should have started the operations. If he/she has entered the establishment

with register of commerce and publication or has made annnouncements to the public, whether through newspapers or

by distributing letters or leaflets, adverstising establishment, he would still be regarded as a merchant Rights&obligations of being merchant


•C- Operation of the commercial enterprise

at least in part, under the name of the person concerned▫“at least in part” – jointly operation of

enterprise by more than one person▫Operation of the enterprise by merchant is

not compulsory On behalf of merchant, anyone may operate the

commercial enterprise “Merchant character” belongs to whom? Worker?

SPECIAL STUATIONS

•People who are minor and who are under guardianship

•People barred from involving in commercial business

•Dealing in commercial activities depended on a permission

SPECIAL CONDITIONS- MERCHANT?

• A- People who are minor and who are under

guardianship : According to TCC Article 13, if the commercial enterprise is operated by a legal representative (guardian by nature or curator) on behalf of the people who are minor and who are under guardianship, these people shall be deemed as merchant▫Legal responsibility derived from being

merchant belongs to people who are minor and who are under guardianship but criminal liablity belongs to guardian by nature or curator

SPECIAL CONDITIONS- MERCHANT?

• People who are minor and who are under

guardianship : ▫who are under guardianship?

Insanity (madness) Weakness of the mind Prodigality ( savurganlık), toxicomania

(alcohol,narcotic), bad lifestyle, bad management

Jail sentence (one and over one year) Demand

SPECIAL STUATIONS

• B-People barred from involving in commercial business

• Article 14/I of TCC: The person who are deprived of or prohibited from dealing in commercial activities because of▫ Their personal status or▫ The position/profession they occupy

▫ Prohibition: Legal provision or Judgment▫ Permission required: (person or legal authority)

▫ Deemed as merchant accordingly, if they are engaged in commercial enterprise

▫ Kişisel durumları ya da yaptığı işlerin niteliği nedenyle yahut meslek ve görevleri dolayısıyla, kanundan veya bir yargı kararından doğan bir yasağa aykırı bir şekilde ya da başka bir kişinin veya resmi makamın iznine gerek olmasın rağmen izin ve onay almadan bir ticari işletmeyi işleten kişi de tacir sayılır (TTK.m.14/I,

SPECIAL STUATIONS• B- People barred from involving in commercial

business-Cont.▫ Example: Civil servants

prohibition related to commerce If operates commercial enterprise Shall be deemed as merchant

At the same time, the person shall be subject to legal, criminal and disiplinary sanctions according to their private law For civil servants disiplinary sanction

SPECIAL STUATIONS• C- Dealing in commercial activities depended on

a permission

DIFFERENCES - TO BE DEEMED AS MERCHANT AND TO BE (LIABLE) RESPONSIBLE AS MERCHANT

•Person deemed as merchant, shall benefit from the rights and be responsible for the obligations that derived from being merchant

•Person who is responsible as merchant , shall only be responsible as merchant but shall not benefit from the rights given to merchant

Legal person merchantA. Commercial companiesB. Associations which operate commercial

enterprise C. Foundations which operate commercial

enterpriseD. Entities which are formed by State, Private

Provincial Administration, Municipality, Village and other public corporations to be operated in a commercial manner or pursuant to their statutes of foundation to be managed according to private law

Loss of MERCHANT position

•For real person merchant▫In which conditions:

Closure of commercial enterprise To end operating the commercial enterprise

under his name▫How?

Notification to register of commerce + demand for the cancelation of the register

To declare property▫When?

Within 15 days

Loss of posITION OF BEING MERCHANT

•For legal person merchant▫In which conditions:

Cessation of legal personality▫How?

Completion of liquidation procedure cancelation of the register (publication)

Consequences of being MERCHANT • Regulated in Article 18- 23 of NTCC

▫ Subject to banckruptcy▫ Registration to the register of commerce▫ Registration to the Chambers▫ Selection and usage of trade name▫ Subject to presumption of commercial affair▫ Subject to trade customs and usage▫ To keep commercial books▫ To behave as a prudent business man▫ To claim fee and interest▫ To claim discount in the fee and interest▫ To pass an invoice▫ Right of objection against invoice and confirmation letter within 8 days▫ Form requirement for all notices and notification▫ Benefit from the easiness concerning the usage of lien▫ Subject to special provisions concerning sales and change of goods.

Affairs

Ordinary affairs– commercial affairs

Commercial affairs are different from ordinary affairs and subject to different rules

COMMERCIAL AFFAIRS

A- TCC Article 3 The ones which are regulated in the TCC The ones which are concerning the commercial

enterpriseB- TCC Article 19- presumption

The debt of the merchant is commercial. (19.1) Exception for real person merchantsC- Affairs which is deemed commercial for one

party (19/2) The contracts which are deemed as commercial for one party, shall be accepted as commercial for the counter party

B-Presumption of “commercial affair”

Real Person Merchant Legal Person Merchant

• Two options to be deemed as ordinary▫ Explicitly declaration of

the counter party Ex. Purchasing washing

machine for personal usage

▫ As the case may be Ex. Puchasing washing

machine, (there is no explicitly declaration) but the delivery address is home address.

• All of the affairs of the legal person merchant are commercial▫ Ex. Company, rents a

property for the employees’ usage.

What happens if the affair is accepted as commercial for one party and ordinary for the counter party?• TTC 19.2

▫Unless otherwise provided in the TCC, any contract that has commercial character for one party shall be deemed as commercial for the counter party

▫Ex. Sales contract between merchant and civil servant

▫Conditions Contract Unless otherwise provided in the TCC

▫ If Relationship between the parties derived from tort or unjust enrichment, this provision is not applicable

Consequences of Commercial Affairs

Validity of Presumption of solidarity (joint and several obligation) concerning the commercial affairs

Application of commercial interest Legal limitation periods Application of commercial provisions Legal Disputes – Commercial Case

Presumption of solidarity

• Solidarity : Consecutively,• joint and several liability concerning the commercial affairs• Article 7 of TCC• In TCC, solidarity among debtors

▫ Conditions: Two or more person should be in debt against one creditor For one of them or both of them, source of the debt should be “commercial

affair” Unless otherwise mentioned in Law or contract

• The guarantors --- “co-debtor and joint guarantor”▫ YTK Md. 7

“İki veya daha fazla kişi içlerinden yalnız biri veya hepsi için ticari niteliğe haiz bir iş dolayısıyla diğer bir kimseye karşı birlikte borç altına girerse, kanunda veya sözleşmede aksi öngörülmemişse müteselsil sorumlu olurlarTicari borçlara kefalet hâlinde, hem asıl borçlu ile kefil, hem de kefiller arasındaki ilişkilerde de birinci fıkra hükmü geçerli olur. ”

Interest

•Concept of “interest”•Definition: A fee which one party pays

to the counter party (in return for deprivation of the usage of money for a specific period ), for the privilege of using borrowed money

Types Of Interest

Capital interest- Default interestSimple interest-Compound interestLegal interest-Conventional interest

TRADE-NAME

What is Trade-name?

•Trade-name is a name that is used by merchant uses

•It is different from “enterprise-name”

Trade-name&NameName Trade-name

• It is not possible to sell & transfer

• Exceptionally, different people may have same name&surname

• One person has one name&surname

• You may sell and trans with commercial enterprise

• It is not possible for two person to use the same Trade-name.

• Merchant will use different trade-name for each commercial enterprise

Where is it regulated?

•It is regulated in Article 39-52 of NTCC.

What is enterprise name?

•Regulated in Article 53 of NTCC

Composition of Trade-name

CoreAnnex Trade-

name

Composition of Trade-name forReal Person Merchant

NameAhmet

SurnameGüzel

Trade-nameAhmet Güzel

Composition of Trade-name forReal Person Merchant•Regulated in Article 41 of NTCC•Name + Surname•No abbrevation related to name&surname •Annexes according to Article 46 of NTCC

Composition of Trade-nameLegal Person Merchant- Collective Company

At least one of the partners

Name&Surnameİbrahim Okur ve

Ortakları

Types of the Company

Collective Company

Trade-nameİbrahim Okur ve

Partners Collective Company

Composition of Trade-nameLegal Person Merchant- Collective Company

•Only real persons may be partner•Ahmet Yılmaz ve Hasan Çelebi Collective

Company• Ahmet Yılmaz Collective Company•Ahmet Yılmaz & Partners Collective

Company

Composition of Trade-nameLegal Person Merchant- Commandite Company

At least one of unlimited liable

partners’Name&Surnameİbrahim Okur ve

Ortakları


Commandite Company

Trade-nameİbrahim Okur ve

Partners Collective Company

Composition of Trade-nameLegal Person Merchant- Limited Company

Subject of company

İthalat- İhracat

Types of the CompanyLimited

Company

Trade-nameİthalat-İhracat

Limited Company

Composition of Trade-nameLegal Person Merchant- Joint Stock Company

Subject of company

İthalat- İhracat


Joint-Stock Company

Trade-nameİthalat-İhracat

A.Ş

Composition of Trade-name Annex

• General Rule: It is not obligatory. It is optional• Article 46.1 of NTCC

▫Mühendis Ali Yılmaz and Partners Inşaat Collective Company

▫Yaldız Ithalat ve Ihracat Anonim Şirketi• Annex usage conditions (annex related to

identification of the merchant, financial situation, size and importance of the enterprise):▫Shouldn’t be deceptive▫Shouldn’t be inaccurate▫Shouldn’t be contrary to the public policy

Composition of Trade-name Annex

• Obligatory Annex- it should be used in the trade-name▫ “In liquidation”

The company in liquidation should mention this situation in the trade-name▫ “Branch”

Türkiye Vakıflar Bankası T.A.O Cebeci Branch▫ “Head Office”

In case of the head office is abroad, the Branch in Turkey, should mention in their trade-name the place of head office and branch

Ör. The ……….. Bank N.A, Head Office: New York, Ankara Branch▫ Add annex to distinguish the trade name from the one that had registered before yours.

İthalat-İhracat A.Ş ---- İzmir İthalat İhracat A.Ş • Prohibitted Annex

▫ Permission from the Council of Ministers is necessary to use the following words“ Türk, Türkiye, Cumhuriyet ve Milli” as a trade-name

▫ Deceptive & inaccurate annexes are forbidden Usage of Dr. Although he/she is not Dr.

• Optional Annexes

Registration to the Register of Commerce

•What Trade-name selection and registration•When:within 15 days from the opening or deemed

as opened of the commercial enterprise•Where: register of commerce

TRADEMARK

IMPORTANCE OF TRADEMARK• increased competition among companies

undertaking trade in more than one country•used to simplify the identification by

consumers of goods or services, as well as their quality and value

Effects on consumer preferationsConsumer dependency on products/servicesIncrease on the demand of product/services •Distinction: Pepsi-Cola and Coca-Cola•Asset value? Trademark value?

The main purpose of a trademark

the main purpose of a trademark is

-to identify the source of a product and -to distinguish that product from products coming from other sources.

1. What is a trademark?What it is not Classical definition: “A trademark is any sign that

individualizes the goods of a given enterprise and distinguishes them from the goods of its competitors”. Two functions:- individualization- distinction (Also shows quality, origin/ be used as advertisement)

Two main characteristics: -it must be distinctive -it should not be deceptive

1. What is a trademark?Court of Justice of the European Communities, September

29, 1998 - Case C-39/97, Canon Kabushiki Kaisha v Metro-Goldwyn-Mayer Inc., formerly Pathe Communications Corporation:“… according to the settled case-law of the Court, the essential function of the trade mark is to guarantee the identity of the origin of the marked product to the consumer or end user by enabling him, without any possibility of confusion, to distinguish the product or service from others which have another origin.”

TRIPS, Article 15Article 15 - Protectable Subject Matter

1. Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark. Such signs, in particular words including personal names, letters, numerals, figurative elements and combinations of colours as well as any combination of such signs, shall be eligible for registration as trademarks. Where signs are not inherently capable of distinguishing the relevant goods or services, Members may make registrability depend on distinctiveness acquired through use. Members may require, as a condition of registration, that signs be visually perceptible.

European Directive 89/104Article 2 - Signs of which a trade mark may

consist

A trade mark may consist of any sign capable of being represented graphically, particularly words, including personal names, designs, letters, numerals, the shape of goods or of their packaging, provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings.

AIM/OWNER/REGISTRATION

•Aim: to protect the name of the product rather than the invention or idea behind the product.

•Owner: can be owned by individuals or companiesRegistration:should be registered at a governmental agency, which is usually referred to as the Trademarks Office.

•A trademark may consist of ▫words, ▫designs, ▫letters, ▫numerals or packaging, ▫ abbreviations or names (famous make of car, Ford –

named, of course, after Henry Ford, who built the first one)

▫slogans,▫devices, ▫symbols, etc.

Sample Trademarks• Words: ‘Apple’ for computers; Deutsche Bank

for a bank,• Arbitrary or fanciful designations: Coca-Cola,

Nikon, Sony, NIKE, Easy Jet.• Names: Ford, Peugeot, Hilton (hotel)• Slogans: ‘Fly me’ , for an airline;• Devices: the star for Mercedes Benz, the flying

lady for Rolls Royce• Number: the 4711 cologne• Letters: GM, FIAT, VW, KLM• Pictures or symbols: Lacoste (small crocodile)

DISTINCTIVENESS

•when assessing the distinctiveness of a sign for a TRADEMARK it has to be judged together with the goods or services it is to be associated with.

•The most common way of protecting a trademark is to have it registered in the Trademark Register

COLLECTIVE MARKS• “Collective marks usually belong to a group or association of

enterprises. Their use is reserved to the members of the group or association. A collective mark therefore distinguishes the goods or services of members of the association from those of other undertakings.

• The function of the collective mark is to inform the public about certain particular features of the product for which the collective mark is used. An enterprise which uses the collective mark may, in addition, use its own trademark. Example: in an association of architects or engineers, a member may use the logo of the association as well as the logo of the enterprise.”

• Reference: WIPO Notes concerning General Course on Intellectual Property Rights

CERTIFICATE MARKS• “A certificate mark is a mark indicating that the goods or

services in connection with which it is used are certified by the proprietor of the mark in respect of the origin, mode of manufacture of goods, quality or other characteristics. The certification mark may only be used in accordance with the defined standards. Example: ISO 9000.


WELL-KNOWN TRADEMARKS

• “Some companies have successfully established, via their trademarks or service marks, worldwide renown. Subsequently, consumers can, without effort, recognize and identify their goods and services, their qualities and their features without referring to the location of the company in question. These trademarks are called well-known marks or famous marks. Examples: Sony, Versace, Louis Vuitton, etc.”


When a trademark is well-known trademark?

•The Factorsdegree of knowledge or recognition of the mark in the relevant sector of the public and the duration, extent and geographical area of any use of the mark.

TRADEMARK IN TURKISH LAW

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Decrees with the effect of law numbered 556

By-law related to the application of Decrees with the effect of law numbered 556

Current Legislation

DEFINITION

•Decrees with the effect of law numbered 556Article 5

▫“Any sign .......... provided that it distinguishes the goods or services of a given enterprise from the goods&services of its competitors”

Trademark consist of any sign such as

▫names ,words, ▫letters, ▫Numerals▫Colour combinations ,

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TYPES OF THE TRADEMARKCommercial TrademarksService TrademarkCollective TrademarksGuarantee TrademarkCommunity Trademark Industrial Designs can not be registered as

Trademark

Application for Trademark Registration

Real &Legal person or their legal representativeNecessary Documents:• Petition• Trademark sample• The list of goods or services where the

trademark shall be used• Payment documents For each trademark registration, seperate

application is necessary

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Process

1) Formal Examination2) Meritorious Examination3) Objection period4) Registration

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Grounds for refusal of trademark registration•Absolute grounds (Article 7)•Relative grounds (Article 8)

SOME POINTS

Main Targets

•Transparency,•Accountability, • Institutionalization, •Electronic Procedures• Better investment opportunities •Prevention of unregistered system

LEGISLATION –COMMERCIAL LAW

Until 1850 there is no seperate code that regulates commercial law

Related to commercial issues the first code is: Commercial Code dated 1850 (Kanunname-i Ticaret)’tir

Commercial Code Numbered 845 Commercial Code Numbered 6762

(1956, Germany/Switzerland) Commercial Code Numbered 6102

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COMMERCIAL BOOKS

• Obligation of keeping commercial books (Article 64 of TCC)• UFRS system - International Financial Reporting Standards • Transparency* Registration or copy of all of the documents of commercial enterprise• Keeping of commercial books electronically or as a dossier• Keeping period: 10 years

▫Corporations Ordinary partnership Commercial Corporations

Personal based companies(Şahıs şirketi)▫Collective Company▫Ordinary Commandite Company

Capital based companies▫Limited Liability Company▫Joint-Stock Company▫Commandite Company with capital divident in to

sahres Co-operatives

•Capital Based CompanyJOINT

STOCK

•Capital BasedLIMITED LIABILITY

JOINT-STOCK COMPANY

•At least one real or legal person•Minimum Capital:

▫50.000--- All of the capital undertaken▫100.000---- Registered capital sytem

▫The company shall be deemed as established on the date of approval of the signatures at the Notary. Legal personality shall be entitled on the date of registration.

Limited Lıablıty COMPANY

•At least one real or legal person, at most 50

•Minimum Capital: 10.000 TL•¼ Of the capital in advance, the rest

within 24 months.