Transfer of Profits Arising From the Infringements of Intellectual Property Rights
Dr. Ozan Ali YILDIZ*
Article 66-70 of Law No. 5846 on Intellectual and Artistic Works (“Law”) stipulates the legal claims which may be brought in case of infringements of intellectual rights. The right holder may make a request to remedy an existing infringement (Law art. 66-68), for multiple damage claims (Law art. 68), to prohibit an imminent infringement (Law art. 69), for pecuniary and non-pecuniary compensation claims (Law art. 70/1, 2), and for transfer of profits (Law art. 70/3). The subject of this study is the transfer of profits (Law art. 70/3), which is one of these demands. The request for transfer of profits is a request based on false agency without authority. In order for this claim to be asserted, the required conditions are indicated below: The agent has conducted another person’s business, the agent has acted in the interest of himself/herself or a third person, it is illegal for the agent to conduct such business, the agent has earned a profit, there is a relation of causality between such profit, and the act of conducting business and (although it is controversial in the doctrine) that the agent is in bad faith. In this context, the use of another person’s intellectual right means conducting another person’s business. If there is no legal act or provision of law that makes the use of the foregoing right lawful, such use is considered as false agency without authority. If the person infringing the intellectual rights knows or should have known that such action is unlawful and has gained a profit by this infringement, the right holder may request the transfer of this profit to himself/herself in accordance with the provisions of false agency without authority.
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Key words: False agency without authority, transfer of profits, intellectual property rights, copyright law
* Attorney, Istanbul Bar Association