How Are Trademark Infringement Damages Calculated in Turkey? 3 Methods

When calculating trademark infringement damages in Turkey, the right holder's loss consists, under Article 151/1 of Industrial Property Law No. 6769 (SMK), of actual loss and lost profits. Lost profits are calculated, at the right holder's choice, by one of three methods: the probable income it would have earned without the infringement, the net profit made by the infringer, or the licence fee the infringer would have paid had it used the mark under a licence. In addition, damages for harm to reputation (Art. 150/2) and moral damages (Art. 149/1-ç) may be claimed.

What follows covers, in order, the claims available under the SMK, the heads of damages, the three methods calculated on the same example case, which method is advantageous when, from whom and for which period damages can be claimed, limitation periods and evidence strategy.

What Remedies Are Available for Trademark Infringement in Turkey?

Damages are only one of the claims available to the trademark owner. Under SMK Art. 149/1, a right holder whose right has been infringed may ask the court for:

• A declaration of whether the act constitutes infringement and the prevention of likely infringement
• An order to stop the infringing acts
• Removal of the infringement and compensation for material and moral damage
• Seizure of infringing products and of the tools used exclusively to manufacture them, and recognition of ownership over them
• Measures to prevent continued infringement, such as removal of the marks or, where unavoidable, destruction
• Publication of the final judgment at the other side's expense, where there is a justified reason or interest

Two details directly affect the damages calculation. If ownership of seized products is requested, their value is deducted from the damages under Art. 149/2. The right to publication lapses if it is not requested within three months after the judgment becomes final (Art. 149/3). Which acts count as infringement is explained in our article on what trademark infringement is.

What Heads of Damages Can Be Claimed for Trademark Infringement?

A trademark infringement damages claim can consist of three separate heads, and each is proven differently.

Material Damages: Actual Loss and Lost Profits

Actual loss means the reduction in assets caused by the infringement. For example, corrective advertising spent to clear up confusion, or the cost of returns and complaints caused by counterfeit products, can be assessed under this head. Lost profits are the gains that would have been made without the infringement but were not, and they are calculated by one of the three methods in SMK Art. 151/2.

Reputation Damages (SMK Art. 150/2)

If the reputation of the mark is harmed because the infringer made the product badly, sourced products made in this way or placed them on the market in an inappropriate manner, additional damages may be claimed for that reason. Reputation damages are a separate head from lost profits; customer complaints, negative reviews and dealer feedback caused by poor-quality counterfeits are the typical evidence for this claim.

Moral Damages

SMK Art. 149/1-ç lists compensation for moral damage alongside material damages. The amount of moral damages is not set by a calculation formula but by the court's assessment of the circumstances of the case. The duration and extent of the infringement, and whether it was intentional, weigh heavily in that assessment.

Lost Profits: The Three Methods Under SMK Art. 151

Under SMK Art. 151/2, lost profits are calculated, at the injured right holder's choice, by one of the following methods: (a) the probable income the right holder could have earned without the infringer's competition, (b) the net profit made by the infringer, or (c) the licence fee the infringer would have had to pay had it used the right lawfully under a licence agreement.

Let us compare the three methods on the same example case. Example: Lumora Aydınlatma A.Ş. (a fictitious company), owner of the registered lighting brand "LUMORA", establishes that Parıltı Ev Ürünleri Ltd. Şti. (also fictitious) sold 4,000 desk lamps under the mark "LUMORRA" over 12 months at TRY 500 each. The infringer's revenue is 4,000 × TRY 500 = TRY 2,000,000. The figures are simple examples chosen only to illustrate the methods; in a real case, the amounts are determined by the expert report and the court.

Method (a): Probable Income

This method asks: "What would I have earned without the infringement?" It is not assumed that every customer who bought the counterfeit would have bought the original; some of those looking for a cheaper product might not have bought at all. In the example, suppose the expert finds it reasonable that Lumora would have made 2,500 additional sales without the infringement, and that Lumora's net profit per unit is TRY 150: 2,500 × TRY 150 = TRY 375,000.

This method is strong in cases where the owner can show that its own sales fell during the infringement period and that its production and distribution capacity could have met the lost sales. Its weak point is proving causation: you must show that the drop in sales did not stem from other causes such as seasonality, competition or economic conditions.

Method (b): The Infringer's Net Profit

This method is based on the net profit the infringer made from the infringement. In the example, if Parıltı's production, shipping, marketplace commission and advertising costs are found to total TRY 1,600,000: TRY 2,000,000 − TRY 1,600,000 = TRY 400,000.

The advantage of this method is that the owner does not have to prove its own loss in detail. Its weak point is that the calculation depends on the infringer's records: unrecorded sales, inflated costs and incomplete books can shrink the result. Which costs may be deducted can also be disputed. This method should therefore be considered together with a disclosure request under SMK Art. 150/3 and an expert review of the commercial books.

Method (c): Licence Fee

This method is based on the licence fee the infringer would have paid had it used the mark with permission; in practice it is also referred to as the "licence analogy" or reasonable royalty. In the example, if a reasonable licence rate is accepted as 6% of revenue: TRY 2,000,000 × 6% = TRY 120,000. The rate is chosen as an example; the law sets no rate.

This is the easiest method to prove, and it can be applied even where the owner does not sell in that product segment or cannot show lost sales. Its weak point is that the result is often lower than under the other methods. The owner's own licences and sector practice are used to set the rate; licence fee models are explained in our trademark licence agreement guide, and the relief-from-royalty approach in our article on trademark valuation.

Which Damages Method Works Best, and When?

The choice belongs to the right holder and there is no single correct answer; the method that produces the highest figure may be the one that is hardest to prove. The table below summarizes the results in the example case and the decision criteria:

Two adjustments must be added to the table. First, under SMK Art. 151/4, if method (a) or (b) is chosen and the court concludes that the trademark right was the decisive factor in creating demand for the product, it adds an equitable share to the profit; this share does not exist under method (c), and its rate is not set by law. Second, under Art. 151/3, the calculation takes into account the economic importance of the mark, the number, duration and type of licences, and the nature and scale of the infringement.

In the example, if Lumora chooses method (b) and also claims a documented actual loss of TRY 30,000, the material damages claim reaches TRY 400,000 + TRY 30,000 = TRY 430,000; any equitable share, reputation damages and moral damages are added separately.

Who Can Be Sued for Damages, and for Which Period?

Damages are claimed from those who committed the infringing act (Art. 150/1); however, not every link in the chain is in the same position. The limits drawn by the law are:

• Sellers and distributors: SMK Art. 29/1-c makes the liability of those selling counterfeit goods depend on whether they knew or should have known that the goods were counterfeit. A cease-and-desist letter is the most practical way to document that knowledge; for the content, see our guide to the trademark cease-and-desist letter.
• End users: Under SMK Art. 153/1, no action can be brought against a person who holds or uses an infringing product to the extent of their personal needs.
• Products for which damages have been paid: Under Art. 153/2, no action can be brought against those who use for commercial purposes products placed on the market by a person who paid damages and which the right holder did not seize; the same product cannot be charged for twice.
• Sellers of genuine goods: The unaltered resale of genuine goods placed on the market by the right holder or with its consent may fall under trademark exhaustion and therefore cannot ground a damages claim.
• The pre-registration period: Under SMK Art. 7/4, an action for damages can be brought for acts after the application is published in the Bulletin; however, the court cannot rule on the claims before the registration is published.

If your mark has been registered for more than five years, the defendant may raise the defense of proof of use under SMK Art. 29/2. If you do not use the mark for the relevant goods and services, this defense weakens the claim; relying on method (a) in a segment where you do not sell is difficult in any case.

Limitation: How Long Do You Have to Sue for Trademark Infringement Damages?

SMK Art. 157 provides that the limitation provisions of the Turkish Code of Obligations apply to private-law claims arising from industrial property rights. Under Article 72 of the Turkish Code of Obligations, a claim for damages becomes time-barred after two years from the date on which the injured party learned of the damage and the person liable, and in any event after ten years from the date of the act. If the damages arise from an act punishable under criminal law with a longer limitation period, that period applies; since trademark infringement is defined as an offense in SMK Art. 30, this possibility should be assessed separately on the facts.

For continuing infringements, when the period starts may be disputed; the safe course is to record the date on which you learned of the infringement and not to wait. A cease-and-desist letter does not interrupt limitation on its own; it is not among the grounds for interruption listed in Article 154 of the Turkish Code of Obligations.

One more procedural note: civil actions arising from the SMK are commercial cases under Article 4/1-d of the Turkish Commercial Code, and Article 5/A of the same Code makes applying to a mediator before filing suit a condition of action for damages claims whose subject is a sum of money. If you will bring the damages claim together with declaratory and injunctive claims, settle how the mediation stage will be structured before filing.

Evidence Strategy: Court Experts, Commercial Books and Disclosure Requests

The outcome of a trademark infringement damages case is often determined by the evidence that carries the figures. An effective evidence strategy is built in this order:

1. Document the duration and scope of the infringement: Dated screen captures, test purchase invoices and photographs of points of sale show when the infringement began and how widespread it is.
2. Collect external sales indicators: Sales and review counts visible on marketplaces, price history and advertising records can serve as indirect indicators of sales volume.
3. Prepare your own data: Method (a) requires a comparison of sales, profit and market share before and after the infringement, together with capacity information.
4. Request disclosure of documents: SMK Art. 150/3 allows you to ask the court, before filing suit to preserve evidence or in a pending action to determine the amount of damage, to order the person liable to submit the relevant documents.
5. Steer the expert review: Ask the right questions for the review of the commercial books, invoices and stock records; requesting that a trademark specialist and a certified public accountant be appointed together as experts improves the accuracy of the calculation.
6. Submit comparables for the licence rate: Your own licence agreements or sector practice are decisive under method (c) and in the debate on the equitable share.

If the amount of damage cannot be fully known when filing, the unspecified receivable action (belirsiz alacak davası) available under the Code of Civil Procedure can be considered. For the overall structure of an infringement lawsuit, see our article on how to file a trademark lawsuit.

Can a Damages Claim Run Alongside Criminal Proceedings?

Yes; the two routes are not alternatives to each other. A criminal complaint can stop the infringement quickly through search and seizure, but it does not compensate the damage; damages can only be claimed in a civil action. Products seized and records obtained in a criminal investigation, on the other hand, are a valuable source of evidence for calculating damages. The complaint deadline and the elements of the offense are explained in our article on criminal penalties for trademark infringement in Turkey.

Which method to choose, which evidence to request at which stage and how to schedule mediation and litigation are decisions that must be made at the start of the file. For these decisions, legal support in trademark infringement cases ensures that the claim is built in its strongest provable form.

Conclusion: Key Takeaways

• The trademark owner's loss consists of actual loss and lost profits (SMK Art. 151/1); reputation and moral damages can be claimed in addition.
• Lost profits are calculated using probable income, the infringer's net profit or a licence fee, and the choice belongs to the right holder.
• Under methods (a) and (b), an equitable share can be added if the mark was the decisive factor in demand; method (c) is the easiest to prove but often gives the lowest result.
• Knowledge matters for the liability of sellers; no action can be brought against end users.
• Limitation follows the Turkish Code of Obligations: two years from knowledge, and in any event ten years from the act; a warning letter does not interrupt it.
• The evidence that carries the figures should be planned before filing; disclosure requests and the expert review form the backbone of the calculation.

Shall We Calculate Your Damages Claim Together?

Based on the duration and scope of the infringement and the sales data you hold, let us assess together what the three methods would produce in your case and which evidence is still missing. For an initial assessment, send us your case details via our contact page.