11th Civil Chamber of the Supreme Court
Base Number: 2015/12923
Decision Number: 2017/2724
“Justice Text”
COURT: … … 1. INTELLECTUAL AND INDUSTRIAL RIGHTS
In the case between the parties … … 1. The Supreme Court of Appeals requested that the decision of the Intellectual and Industrial Rights Civil Court dated 07/07/2015 and numbered 2010/170-2015/143 be examined by the plaintiff’s attorney and it was understood that the appeal petition was submitted within the time limit. Since the amount is below 21,242 TL, provisional 3/2 of the Law No. 6100. After hearing the report prepared by the Investigation Judge for the case file, after hearing the report prepared by the Investigation Judge for the case file, after reading and examining the petition, pleadings, hearing minutes and all documents in the file. The necessity of the work was discussed and considered:
The attorney of the plaintiff states that his client is acting as attorney in the lawsuits against the holdings such as …, …. He explained that he obtained a lot of information that is hard to reach by examining it, that he completed his master’s degree in international company law in … and that his client, who has a doctorate on the same subject, classified and summarized this information that found hundreds of folders, including footnotes, which have scientific value for every company operating in this way. It prepares lawsuit petitions, updates the lawsuit petitions with every information obtained in this way, so that lawsuit petitions that are the result of detailed studies in the field of both company law and Capital Market Law and which are more than 30 pages long, can be used in the lawsuits filed by the defendant by copying the petitions of his client almost exactly. that the references, quotations and even the parts indicated in bold are the same, the petitions are in the nature of a work, the use of the petitions without the permission and knowledge of the client is a violation of the rights arising from FSEK, the plagiarism by the defendant is not partial but complete plagiarism, the defendant is unfair by using his client’s work. Preventing new infringement by taking an interim injunction decision, stopping the existing infringement and eliminating them with all their consequences, using the petition without permission, separately for each lawsuit and reply petition in accordance with FSEK 68/1, without prejudice to the rights regarding the surplus. Due to … In accordance with the Bar Association Fee Tariff, pecuniary compensation of 5,190,00 TL, which is 3 times the amount of 1,730,00 TL, 3,000,00 TL per client in non-pecuniary damages, 70/3 m, in accordance with FSEK 70/2. demanded and sued that all of the defendant’s profits and attorney’s fees be paid to his client and that the verdict be announced.
The attorney of the defendant stated that the petition will not be considered a work as the plaintiff claims, even if it is counted as a work, the plaintiff is not the owner of the work, the related cases are well-known cases, and the … Solidarity Association and Atty. that the plaintiff and his client, Atty. Arguing that they met with … and they received an offer to conduct these lawsuits in Turkey, and upon the plaintiff’s dissatisfaction with the service provided, the attorneyship of the association and its members was given to the client, the petitions and documents were provided by the association, and there was no unjust or infringing act by the client, requested the dismissal of the case.
According to the court’s claim, defense, evidence collected, expert report and the whole file, the petitions may very exceptionally be protected works in terms of the personal comments and researches of the owners, the fact that the information used for this is defended by a lawyer for the first time, that it does not enter the public domain, reveals an intellectual creativity. In the category of scientific and literary works where lawsuit petitions can be included, low level expression and insufficient information in scientific works will not contain a feature, the feature requires creativity provided that it is not ordinary and has a certain level, the petitions belonging to the plaintiff are systematically and in a certain order, according to the relevant law. Articles of Association, judicial decisions, doctrine and the CMB report due to the importance of the subject, a certain fiction is created in the petitions, within the framework of this fiction, the victimization of the client and the event that will lead to the result of the request is explained, the relevant language In the petitions, together with the facts, the evidence to prove these facts is also partially referred to, from this point of view, the concretization obligation stipulated in the HMK is fulfilled, although the HMK was not in force at the time the petitions were prepared, it was accepted that the concretization burden should be fulfilled in the petitions in the application of the HUMK, along with the concretization burden. sue
It is generally accepted that the legal reasons, which are among the elements that should be included in the petition, are also included in the petition, that is, the issues that should be included in the lawsuit petition as per the law by the plaintiff party, but there are no elements that can come to the forefront in terms of originality and reflect the characteristics of the owner, and the doctrinal reference is used several times in the petitions. opinions on substantive law are added to the petitions with short explanations by giving legal articles, and case-law texts are also included as it is frequently used in practice. Although the condition of being original is not required, it does not have the qualification of a work because it does not fulfill the condition of having a certain level of characteristics. The lawsuit was dismissed on the grounds that the parts found to be malicious are quoted from the CMB and the law, the information is available in the repository of the Association of …
The plaintiff’s attorney appealed the decision.
According to the information and documents in the case file, and the fact that there is no procedural and unlawful aspect in the discussion and evaluation of the evidence based on the justification of the court decision, all the appeal objections of the plaintiff’s attorney are not appropriate.
CONCLUSION: Due to the reasons explained above, it was unanimously resolved on 09.05.2017 that all appeals of the plaintiff’s attorney be rejected and that the verdict, which was found to be in compliance with the procedure and the law, be APPROVED, and the remaining 3.70 TL of appeal judgment fee be charged to the appellant.
