What Is Trademark Exhaustion? Parallel Imports and Second-Hand Sales

Trademark exhaustion means that the trademark owner cannot rely on its trademark right to interfere with the further sale of a genuine product that it, or someone with its consent, has placed on the market. Under Article 152/1 of Industrial Property Law No. 6769 (SMK), once products have been placed on the market by the right holder or by third parties with its consent, acts relating to those products fall outside the scope of the right. The resale and second-hand sale of genuine goods are therefore, as a rule, not infringement; the position changes under Art. 152/2 if the product has been altered or impaired.

What follows covers the conditions of exhaustion, the position of parallel imports and a comparison with the European Union's regional system, the exception for altered goods, second-hand and refurbished sales, how far marketplace sellers may refer to a mark, selective distribution and the limits of a licence, together with a table of ten scenarios.

What Does Trademark Exhaustion Mean?

The exhaustion principle expresses the idea that the trademark owner receives the economic reward for a product on its first sale, and that its control over that product unit ends with that sale. The logic is simple: the owner sells each product once; it cannot use the trademark right to control whether the buyer resells it, gives it away or puts it on the second-hand market.

What is exhausted is not the trademark itself but the right to control specific product units. The owner keeps its rights against counterfeit goods bearing the same mark, against products not yet placed on the market and against other unauthorized uses of the mark. For the framework of acts that count as infringement, see our article on trademark infringement; exhaustion is one of the most important limits of that framework.

SMK Art. 152 is one of the common provisions of the Law that apply to all industrial property rights. The exception for altered goods in its second paragraph, however, is expressly granted to the trademark owner.

What Conditions Must Be Met for Exhaustion?

For the trademark right to be exhausted in respect of a product, the following conditions must all be met:

1. The product must be genuine: The product bearing the mark must have been manufactured and marked by the trademark owner or with its consent. Exhaustion never comes into play for counterfeit goods.
2. The product must have been placed on the market: The Law says "after being placed on the market". Exhaustion cannot be invoked for stock removed from a warehouse without authorization or never offered for sale.
3. Placing on the market must be by the right holder or with its consent: Consent can be given through a licensee, a group company or a distributor. If the limits of consent are exceeded, this condition becomes debatable.
4. The later act must relate to that product: Exhaustion covers only the product unit placed on the market; it does not free the use of the mark on other products or as a business name.
5. The product must not have been altered or impaired: Otherwise the owner may prevent its commercial use under Art. 152/2.

In most disputes, the burden of proving these conditions lies with the seller. Invoices and supply documents showing that the product is genuine and came through an authorized channel are the reseller's strongest defense.

Parallel Imports: Does Turkey Apply National or International Exhaustion?

Parallel imports are genuine products that the trademark owner, or someone with its consent, has placed on the market abroad, which are then imported and sold in Turkey outside the authorized distribution channel. Exhaustion is undisputed for goods placed on the market in Turkey by the right holder or with its consent; the real question arises when the product was first placed on the market abroad.

The text of SMK Art. 152 sets no geographical limit on where the placing on the market must take place. For this reason, there is a widely held view that Turkish law has adopted international exhaustion. According to this view, the import into and sale in Turkey of a genuine product placed on the market anywhere in the world by the right holder or with its consent cannot, as a rule, be blocked on the basis of the trademark right. The Art. 152/2 exception for altered goods applies here as well.

Comparison with the European Union's Regional Exhaustion System

EU trademark legislation is generally based on regional exhaustion: the right is exhausted for goods placed on the market within the European Economic Area (EEA) by the owner or with its consent, whereas the unauthorized import into the EEA of goods placed on the market outside it can be blocked by the owner. The practical consequence for exporters is this: if third parties move a product you placed on the market in Turkey into the EU market, they may face an objection from the trademark owner in the EU.

The Difference Between Parallel Imports and Counterfeits

A parallel-imported product is genuine; only the distribution channel is not the authorized one. A counterfeit product, by contrast, bears the mark without the owner's consent; it is infringement within the meaning of SMK Art. 29 and may also constitute the offense under Art. 30. Customs measures are therefore an effective tool against counterfeits; but if the application does not provide criteria that distinguish genuine parallel imports, even your own goods may be detained. The procedure is described in our article on customs seizure of counterfeit goods.

Altered or Impaired Goods: The SMK Art. 152/2 Exception

Exhaustion protects the circulation of a product in the condition in which it was placed on the market. Under SMK Art. 152/2, the trademark owner has the right to prevent third parties from using goods covered by exhaustion for commercial purposes after altering or impairing them. The Law gives no examples; the typical situations considered in practice and in legal literature are:

• Repackaging: Removing the product from its original packaging and putting it in another box, or splitting it into smaller packs.
• Label interference: Removing the original label, sticking another label over it or covering information.
• Code removal: Scratching off batch, serial or traceability codes or making them illegible.
• Impaired goods: Selling products that are past their expiry date, have been stored in unsuitable conditions or are damaged.
• Content changes: Changing the product's components, software or composition outside the owner's control.

Each of these situations is assessed separately on the facts of the case. The common test is whether the change affects the guarantee function of the mark, that is, the quality the consumer expects from the branded product. If a drop in quality also harms the mark's reputation, reputation damages under SMK Art. 150/2 may come into play; the calculation methods are covered in our article on trademark infringement damages.

Second-Hand and Refurbished Goods

The second-hand sale of a used genuine product falls within exhaustion as long as the product is not altered. The seller may describe the product together with its brand; the buyer's need to know what they are buying already requires this.

The picture is more delicate for refurbished goods. If the product has been repaired with non-original parts or its essential characteristics have been changed, the Art. 152/2 risk arises. The practical rules are: state clearly that the product is "refurbished" or "second-hand", specify the parts replaced, do not present the product as "new", and do not create the impression that the owner's warranty applies when it does not.

How May Marketplace Sellers Refer to a Trademark?

A person selling genuine goods may refer to the mark to promote them, but that reference must be honest and descriptive. SMK Art. 7/5 prevents the owner from prohibiting the use of its mark honestly and in the ordinary course of trade in indications concerning characteristics such as the kind, quality or intended purpose of goods, and in particular to indicate the intended purpose of accessories, spare parts or equivalent parts. Practical rules for sellers:

1. Use the mark descriptively in the product title: Descriptions such as "genuine X-brand headphones, second-hand" are within the limits of exhaustion and fair use.
2. Do not create the impression of an authorized seller: Do not use "official store", "authorized dealer" or "distributor" unless you actually hold that authorization.
3. Do not make the logo your store identity: Using the brand's logo as your store name, profile image or banner goes beyond promoting the product; SMK Art. 7/3-e separately lists use of a sign as a business name.
4. Say "compatible with" for compatible products: For accessories and spare parts, refer to the mark only to show the intended purpose; do not present the product itself as that brand's product.
5. Keep your supply documents: Being able to produce the invoice and import documents quickly in response to the owner's notice is decisive in keeping the listing online.

Using a mark as the general name of a product category, on the other hand, is misleading and is also seen as a use that increases the risk of trademark genericide for the owner. How marketplace brand protection programs work is explained in our article on trademark registration for Turkish marketplaces.

Do Authorized Dealer Networks and Selective Distribution Prevent Exhaustion?

Not on their own. The owner may organize its distribution network by contract and impose point-of-sale, presentation and quality requirements on authorized dealers. These contracts, however, bind only their parties. A third party who bought the goods lawfully and sells them without alteration is not considered to infringe the trademark right merely because it is outside the network.

Provisions in distribution agreements that restrict parallel trade fall within the scope of competition law. Which selective distribution arrangements are considered legitimate must be assessed separately under the Law on the Protection of Competition No. 4054 and the rules on vertical agreements. If that limit is exceeded, a contract designed to protect the trademark right can turn into a risk of a competition law violation.

Placing Goods on the Market in Breach of a Licence: The Limits of Consent

For exhaustion, the product must be placed on the market "with the consent" of the right holder. If a licensee sells products beyond the territory, product type, quality or term limits set in the contract, whether that sale falls within the consent is debated. SMK Art. 29/1-ç expressly treats unauthorized extension of the rights granted by licence as infringement.

It cannot be said that every breach of contract leads to the same result; it is accepted that the outcome may vary depending on which obligation was breached. Writing the limits of consent clearly into the contract is therefore the most effective measure available to the owner. How to define the scope of a licence is explained in our trademark licence agreement guide.

Scenario Table: Is the Right Exhausted?

What Can You Stop as a Trademark Owner?

Exhaustion protects the free circulation of genuine goods; it does not leave the owner defenseless. All the remedies of the SMK remain available against counterfeits, altered or impaired goods, uses that create the impression of an authorized seller and use of the mark as a business name.

Against Counterfeits, Altered Goods and Misleading Presentation

Against these uses, the owner can seek a declaration of infringement, an order to stop and prevent it, damages and seizure. Counterfeits sold under the guise of parallel imports can also occur, so the first step is to verify technically whether the product is genuine by obtaining a sample. Where genuine goods have been repackaged or their codes removed, photographs, samples and a comparison report showing the change form the core of the evidence file.

Before Sending a Letter to a Seller of Genuine Goods

The first step is often a written notice to the seller. However, sending a letter calling a sale covered by exhaustion "counterfeit" creates the risk of an unfair competition claim and of the other side filing an action for a declaration of non-infringement; these risks are discussed in our guide to writing a trademark cease-and-desist letter. You should not act until it is clear whether the product is genuine and whether it has been altered; legal protection support for this assessment prevents both unnecessary disputes and loss of rights.

Conclusion: Key Takeaways

• Trademark exhaustion means that later acts relating to goods placed on the market by the right holder or with its consent fall outside the scope of the trademark right (SMK Art. 152/1).
• SMK Art. 152 sets no geographical limit; there is a widely held view that Turkish law has adopted international exhaustion. The EU applies regional (EEA) exhaustion.
• The owner can prevent the commercial use of altered or impaired goods (Art. 152/2).
• Second-hand sales are permitted; for refurbished goods, transparency and original parts are decisive.
• Sellers may refer to the mark descriptively; creating the impression of an authorized seller and using the logo as a business identity are beyond the limit.
• Writing the limits of consent clearly into licence and distribution agreements reduces exhaustion disputes from the outset.

Shall We Review Your Distribution Model or Sales Channel Together?

Whether you are a trademark owner facing parallel imports or a seller of genuine goods, let us review together the channel your goods come from, any changes made to them and how the mark is used on your sales page. To request an assessment, share your product and sales channel details via our contact page.