# Acquired Distinctiveness Through Use: Can a Descriptive Mark Be Registered?

> Can a descriptive trademark be registered in Turkey through acquired distinctiveness? SMK Article 5(2) conditions, timing, evidence and how to build the file.

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**Acquired distinctiveness** means that a sign which could not be registered at the outset because it was descriptive or lacked distinctive character has, through intensive and long-term use, come to be perceived by the relevant consumers as the trademark of a particular business. That is why **a descriptive mark can be registered if it is proven to have acquired distinctiveness through use**: under Article 5(2) of Industrial Property Law No. 6769 (SMK), a mark that was used before the filing date and acquired distinctive character as a result of that use cannot be refused under subparagraphs (b), (c) and (d) of Article 5(1).

Below we explain, step by step, which grounds for refusal acquired distinctiveness can overcome and which it cannot, at which stage it should be raised, what each type of evidence proves and how to build the evidence file.

## What Is Acquired Distinctiveness?

The core function of a trademark is to show which business goods or services come from. Some signs perform this function from birth: an invented word or a name unrelated to the product is distinctive from day one. Other signs cannot perform this function at the outset because they describe the product or are commonly used in the sector.

This concept describes a sign from the second group acquiring a "secondary meaning" over time. Consumers no longer perceive the expression only as a description of the product, but also as the name of a particular producer. Suppose, for example, that a bakery chain has used the phrase "Taze Ekmek" ("Fresh Bread") on its own and intensively for years: the phrase is descriptive by nature, but if a significant part of consumers now associates it with a particular business, the question of acquired distinctiveness arises.

In practice, the terms "distinctiveness acquired through use" and "secondary meaning" are also used for the same concept. Whatever the label, the question asked is the same: when the relevant consumer sees the expression, do they think about what the product is, or about who it comes from?

This exception is kept narrow to preserve a balance. Descriptive expressions must remain available for everyone to use; granting a monopoly to a single business is possible only when a genuine change in market perception is proven.

## Which Grounds for Refusal Can It Overcome, and Which Can It Not?

Distinctiveness acquired through use overcomes only three absolute grounds for refusal: signs devoid of distinctive character, descriptive signs and signs that have become customary in trade. No other ground can be overcome this way, however intensive the use.

| Ground for refusal (SMK Article 5(1)) | Can acquired distinctiveness overcome it? | Note |
| --- | --- | --- |
| (b) Signs devoid of any distinctive character | Yes (Article 5(2)) | Such as simple shapes, single letters and ordinary laudatory expressions |
| (c) Descriptive signs | Yes (Article 5(2)) | Expressions indicating kind, quality, quantity, purpose or geographical origin; well-known place names included |
| (d) Signs customary in trade | Yes (Article 5(2)) | Established expressions and designations in the sector |
| (e) Shapes resulting from the nature of the goods, a technical result or substantial value | No | The Office's examination guidelines also state expressly that the exception does not apply to this ground |
| (ç) Signs identical or indistinguishably similar to an earlier mark | No | The way around it is a notarized letter of consent (Article 5(3)) |
| (f), (g), (ğ), (h), (ı), (i) Deceptiveness, protected emblems, religious symbols, public order, registered geographical indications | No | Grounds based on the public interest do not disappear through use |

The same logic applies after registration. Under Article 25(4) of the SMK, a trademark registered in breach of subparagraphs (b), (c) and (d) cannot be declared invalid if it acquired distinctive character through use **before the invalidation request**. Note the difference: in an application the reference date is the filing date, while in invalidation it is the date of the invalidation request. The Office's examination guidelines likewise identify distinctiveness acquired through use as the only exception to the rule that widely known geographical place names are refused.

## What Do "Descriptive" and "Non-Distinctive" Mean?

A descriptive sign is an expression that directly states the kind, quality, quantity, intended purpose, value, geographical origin or time of production of the goods or services. A non-distinctive sign, on the other hand, may not describe the product directly but remains ordinary and does not point to a commercial origin in the consumer's eyes. We cover all the grounds for refusal in detail in our article on [why trademark applications are refused](https://www.webx.net.tr/en/blog/why-trademark-applications-are-refused).

This debate arises most often with three types of signs: foreign words whose Turkish meaning describes the product (see our article on [registering foreign-word trademarks](https://www.webx.net.tr/en/blog/registering-foreign-word-trademarks)), single letters, numbers and abbreviations (see our article on [letter and number trademarks](https://www.webx.net.tr/en/blog/letter-and-number-trademarks)), and slogans perceived as advertising messages. We examine the distinctiveness problem for slogans separately in our guide to [registering a slogan](https://www.webx.net.tr/en/blog/how-to-register-a-slogan-as-a-trademark).

## At Which Stage Is Acquired Distinctiveness Raised?

This claim is not examined of the Office's own motion; it is assessed on the applicant's request and evidence. As the TÜRKPATENT examination guidelines on Article 5 of the SMK also state, it must be proven either with documents submitted at the application stage or at the stage of an appeal against the decision. There are four distinct moments.

### At the application stage

If you know from the outset that the sign may be considered descriptive, it is possible to submit the evidence with the application or during examination. This approach can shorten the time that would otherwise be spent on a refusal decision and an appeal. But an incomplete file serves no purpose; a weak first submission can also be read against you in a later appeal.

This choice also has a strategic side: protecting a high-risk descriptive expression through a separate application combined with a distinctive logo or an additional word keeps the business protected while the debate continues.

### Appeal against a refusal (SMK Article 20)

This is the most commonly used route. A written, reasoned appeal must be filed within **two months** of notification of the refusal decision, and the appeal fee must be paid within the same period. Under Article 20(2) of the SMK, grounds cannot be changed and new grounds cannot be added after the appeal period; the claim of distinctiveness acquired through use must therefore be raised within the deadline, and the evidence should be filed together with the appeal wherever possible. The appeal is examined by the Re-examination and Evaluation Board (YİDK). We explain how to structure the appeal in our article on [what to do when your trademark application is refused](https://www.webx.net.tr/en/blog/how-to-appeal-a-trademark-refusal).

### Court action against a YİDK decision

If the YİDK rejects the appeal, an action can be brought before the Ankara Intellectual and Industrial Property Rights Civil Court, which is the competent court for actions against decisions of the Office (SMK Article 156(2)). Having built the evidence file completely at the administrative stage also strengthens your position in court. As the proceedings may include an expert examination, it helps to organize the evidence so that a technical reviewer can read it easily. For the court process, see our article on [appealing a TÜRKPATENT Board decision in court](https://www.webx.net.tr/en/blog/appealing-a-turkpatent-board-decision-in-court).

### Defense in an invalidation action (SMK Article 25(4))

If your registered trademark becomes the subject of an invalidation action on the ground that it is descriptive, you can defend the action by proving that the mark acquired distinctiveness through use before the invalidation request. Here too the evidence file is decisive, which is why it matters to keep your use records in order after registration as well.

## How Is Acquired Distinctiveness Proven?

What must be proven is that the sign was perceived as a trademark by a sufficiently large part of the relevant consumers **before the filing date, in Turkey, for the goods and services covered by the application**. The Office's practice does not set a fixed percentage threshold; the assessment is based on the evidence as a whole.

In practice, the following principles stand out: the evidence must reflect the perception of the target audience; recognition obtained only abroad is not sufficient on its own; turnover and advertising figures must relate only to the sign and goods in the application; and sources independent of the applicant are more valuable than statements from persons connected to it. For goods sold to a specialist audience, the evidence should concern that audience; for products everyone consumes, such as food, perception among the general public must be shown. The table below sets out the main types of evidence, what they prove and where they are weak.

| Type of evidence | What it proves | Weak point |
| --- | --- | --- |
| Duration and continuity of use (first-use documents, invoices spanning years) | How long and how continuously the sign has been on the market | Does not show consumer perception on its own; long but low-volume use may not be enough |
| Sales volume and turnover | The intensity of use | Must be broken down by sign and goods; without comparison to market size it means little |
| Market share and sector rankings | The sign's weight in the sector | Weak if it relates to company-wide totals; the source must be independent |
| Geographic reach (lists of points of sale and dealers) | That use has spread across Turkey | Concentration in a single region does not show national perception |
| Advertising and promotional spending | How often consumers encounter the sign | It must be shown that the sign featured in advertising as a trademark, not as a description |
| Consumer surveys and market research | Consumer perception, directly | Leading questions or a biased or irrelevant sample reduce the evidential value |
| Press and independent publications | That third parties associate the sign with the business | Paid content and repeated press releases carry little weight |
| Statements from chambers, professional bodies and consumer associations | How the sector perceives the sign | Statements from connected persons, such as dealers or suppliers, are less effective |

## How Should the Evidence File Be Structured?

A good evidence file is not a pile of documents but an organized narrative that answers a single question: did consumers perceive this sign as a trademark on the filing date? It helps to build the file in this order:

1. **Map the scope.** Clarify for which goods and services you claim distinctiveness. The claim is more convincing when limited to the items you actually use intensively.
2. **Show that the sign was used in the form you are seeking to register.** The evidence must show the exact same expression. If the phrase has always been used alongside another distinctive logo or house mark, it becomes debatable which element the perception belongs to.
3. **Build a chronology leading up to the filing date.** Prepare year-by-year summaries of use, sales and promotion; keep documents dated after the filing date separate.
4. **Put the figures in context.** Present sales and advertising figures together with the total size of the market and the position of competitors; rely on independent industry reports where possible.
5. **Put independent sources first.** Audited financial statements, independent press coverage and statements from professional bodies are stronger than internal company reports.
6. **Design the survey properly from the start.** Select the target audience correctly, avoid leading questions, have the research carried out by an independent organization and set out the methodology clearly in the report.
7. **Prepare a summary and an index.** A summary table showing what each piece of evidence proves helps the reviewer read the file correctly.

What matters is not the volume of the file but its precision. Rather than hundreds of invoices repeating the same information, representative samples spread across years and regions, together with an independent financial report summarizing them, are far more effective.

Most of this file consists of records accumulated before any dispute arises. We explain step by step how to collect evidence of use in day-to-day business in our article on [using an unregistered trademark](https://www.webx.net.tr/en/blog/using-an-unregistered-trademark).

## What Are the Limits of Acquired Distinctiveness?

This exception is powerful, but it does not provide unlimited protection. The following limits should be taken into account before filing:

- **The reference date is fixed.** For an application, the filing date governs; distinctiveness acquired afterwards does not save that application.
- **Turkey is the benchmark.** Recognition abroad carries weight only to the extent that it is reflected in the perception of Turkish consumers.
- **The scope of protection may be narrow.** In the Office's practice, marks registered this way are not considered to have above-average distinctiveness in oppositions, unless they have a reputation.
- **Honest descriptive use remains free.** Under Article 7(5)(b) of the SMK, third parties may continue to use the expression to give honest indications about the kind, quality or purpose of goods.
- **Distinctiveness must be maintained.** If the mark turns back into a generic name over time, revocation may follow; we discuss this risk in our article on [trademark genericide](https://www.webx.net.tr/en/blog/trademark-genericide).

## Are Acquired Distinctiveness and Reputation the Same Thing?

No. Acquired distinctiveness is the minimum threshold that removes the obstacle to registration: the sign must at least be perceived as a trademark. Reputation, by contrast, is a much higher level of recognition that extends protection and allows opposition and protection even for different goods and services (SMK Articles 6(4) and 6(5)).

Although the types of evidence look similar, what is measured is different; the first asks "is it perceived as a trademark?", the second asks "how broad a public knows it?". We explain the criteria for reputation status in our article on [well-known trademarks](https://www.webx.net.tr/en/blog/what-is-a-well-known-trademark).

## Conclusion

Acquired distinctiveness is an exception that leaves the door open for businesses that have turned a descriptive expression into a brand over the years; but only a strong evidence file gets you through that door. Key takeaways:

- Under Article 5(2) of the SMK, distinctiveness acquired before the filing date prevents refusal based on subparagraphs (b), (c) and (d).
- The exception does not apply to grounds such as shape (e), a similar earlier mark (ç), deceptiveness and public order.
- The claim must be raised at the application stage or in the appeal against refusal, within the two-month period and with its grounds.
- Proof requires independent, measurable evidence relating to Turkey; there is no fixed percentage threshold.
- Keep use records after registration as well; in invalidation, the reference date is the date of the invalidation request.

### Has your descriptive trademark been refused?

Send us the refusal decision and your history of use through our [contact page](https://www.webx.net.tr/en/iletisim); together we will assess, before the appeal deadline expires, whether your claim is realistic and what is missing from the evidence file. Working with trademark attorneys authorized before TÜRKPATENT, Webx provides [legal support against refusal decisions](https://www.webx.net.tr/en/hizmetler/hukuki-koruma); where the claim remains weak, we can plan a new [trademark registration](https://www.webx.net.tr/en/hizmetler/marka-tescil) application with an added distinctive element.

## Frequently Asked Questions

### How many years of use are needed for acquired distinctiveness?

The law sets no minimum period. What matters is the duration of use together with its intensity and reach, and ultimately whether it has changed consumer perception. Both short but very intensive use and long but limited use are assessed; which is sufficient is determined by looking at the evidence as a whole. The Office's practice does not set a fixed percentage or time threshold either.

### Is it mandatory to submit a consumer survey?

It is not mandatory; acquired distinctiveness is proven by the evidence as a whole. However, because a survey measures consumer perception directly, it can be the strongest part of the file. Surveys that avoid leading questions, select the target audience correctly and are carried out by an independent research organization carry high evidential weight. A poorly designed survey, on the other hand, can weaken the file rather than strengthen it.

### Does distinctiveness acquired abroad count in Turkey?

Not on its own. It must be shown that the relevant consumers in Turkey perceive the sign as a trademark. Sales, registrations and advertising abroad carry supporting value only to the extent that they show Turkish consumers have encountered the sign; for example, sales and promotional activity directed at Turkey should be documented separately. Lists of dealers and points of sale in Turkey are useful in this respect.

### Is a trademark registered through acquired distinctiveness weaker?

The registration is a full trademark registration, but its scope of protection can be narrow in practice. In the Office's practice, marks registered this way are not considered to have an above-average degree of distinctiveness in opposition proceedings, unless they have a reputation. In addition, third parties may continue to use the expression honestly to describe the characteristics of their goods.

### Can I claim acquired distinctiveness for a descriptive word used inside my logo?

It is possible but difficult. The evidence must show that consumers associate the word itself, not the figurative element of the logo, with a particular business. If the word has always been used together with a distinctive logo or another trademark, it becomes debatable which element the perception belongs to. Advertising, packaging and survey results in which the word appears on its own are therefore especially valuable.

### Does use after my application was refused count?

Article 5(2) of the SMK looks at the filing date; distinctiveness acquired after filing does not save that application. Even so, use that continues and grows after the refusal becomes accumulated evidence for a new application you may file later. When invalidation of a registered trademark is sought, the test is different: distinctiveness acquired before the invalidation request also protects the mark.

### My competitor registered a descriptive phrase through acquired distinctiveness. Can I no longer use it?

Under Article 7(5)(b) of the SMK, a trademark owner cannot prevent third parties from honestly, and in the ordinary course of trade, giving indications about the kind, quality, intended purpose or other characteristics of goods. Using the phrase to describe your product can fall within this scope; presenting it as if it were your own brand name, however, creates a risk of infringement. The line is drawn according to the manner of use.

### Can I prepare an acquired distinctiveness file myself?

Applicants resident in Turkey can handle their proceedings without an attorney; those resident abroad can only be represented by a trademark attorney. Even where it is legally possible, this file is technical work, because it requires selecting the evidence, designing the survey and submitting the grounds of appeal completely within the deadline. Since grounds cannot be added later, the first submission is decisive.

## Related Resources

- [Legal Protection](https://www.webx.net.tr/en/hizmetler/hukuki-koruma): Explains attorney support for bulletin oppositions, appeals against refusals, counter-statements and trademark infringement cases.
- [Trademark Registration](https://www.webx.net.tr/en/hizmetler/marka-tescil): Explains how a trademark application is handled before TÜRKPATENT, from the preliminary search and class selection to the registration certificate.
- [Why Are Trademark Applications Refused?](https://www.webx.net.tr/en/blog/why-trademark-applications-are-refused): Why are trademark applications refused? Absolute grounds under Article 5 and relative grounds under Article 6, which are raised ex officio, and how to avoid refusal.
- [My Trademark Application Was Refused — What Now?](https://www.webx.net.tr/en/blog/how-to-appeal-a-trademark-refusal): If your trademark application was refused you have two months to appeal. The Board process, arguments that work, consent, and the court stage.
- [Can You Register an English or Foreign Word as a Trademark in Turkey?](https://www.webx.net.tr/en/blog/registering-foreign-word-trademarks): Can a foreign word be a trademark in Turkey? How meaning affects descriptiveness, non-Latin scripts, translation conflicts, Turkish suffixes and export risks.
- [Can Letters, Numbers and Acronyms Be Registered as Trademarks?](https://www.webx.net.tr/en/blog/letter-and-number-trademarks): Letter trademark registration in Turkey: distinctiveness of single letters, acronyms and numbers, company initials, similarity, searching and how to strengthen.
- [What Happens When a Trademark Becomes Generic? Genericide and Prevention](https://www.webx.net.tr/en/blog/trademark-genericide): What is trademark genericide? A mark that becomes a generic name can be revoked under SMK Art. 26/1-b. Conditions, dictionary rights and a 10-point checklist.
- [Slogan Registration: Can You Protect Your Slogan as a Trademark?](https://www.webx.net.tr/en/blog/how-to-register-a-slogan-as-a-trademark): How to register a slogan as a trademark: distinctiveness requirements, common grounds for refusal, and strategies to strengthen your protection.