Important Information About Power of Attorney

In Article 502 of the TCC, a contract of agency is defined as “a contract in which the agent undertakes to perform a task or perform a transaction for the principal.”

A power of attorney, which is an indicator of a power of attorney contract, is a written document that authorizes another person to act on his/her behalf in certain situations and proves the representation relationship between the parties. While the power of attorney contract remains between the parties, the power of attorney is presented to the relevant place according to the purpose for which it was issued.

• With the agency contract, the agent must enter into a commitment/liability in order to carry out a task.
• The work must be carried out in accordance with the will of the principal. The principal is responsible for carrying out the work with loyalty and care. However, there is no guarantee of any result.
• The attorney and the principal must reach an agreement for a job to be done. The agency fee is not a mandatory element of the contract. The parties may agree on this fee at the outset, or they may agree on a fee after the job is done. However, in order to prevent possible disagreements/disputes, it is in the best interest of both parties to agree on the agency fee at the outset and state it clearly in the contract.

Unless the agent is given explicit authority for a transaction requiring a special authority, the agent is not obliged to perform that transaction. Situations requiring special authority are; filing a lawsuit, making a settlement, applying to arbitration, bankruptcy, postponement of bankruptcy or requesting composition, making a foreign exchange commitment, making a donation, being a guarantor, transferring real estate or limiting it with a right.

In a contract of agency, the parties can decide on the duration as they wish. If no duration is stipulated, the contract is indefinite.

As a rule, a person who is offered a job does not need to express his/her refusal to reject the job contract offer. In other words, remaining silent does not mean acceptance. However, if the person offered the job has an official title to do the job or if the job is required by his/her profession or if he/she has announced that he/she will accept such jobs, in this case, if the person does not immediately reject the offer, he/she will be deemed to have accepted the offer implicitly.
The meaning of the word “immediately” should not be interpreted literally but in a reasonable sense. Therefore, the attorney should be given at least a short time to think about the proposal he has received. For example, a lawyer or a surgeon should not be faced with the presumption of immediate acceptance without reviewing the files or patient reports presented to them. Trademark and patent attorneys are also included in this exception.

In Article 512 and Article 513 of the TCC, the reasons for termination of the power of attorney are listed as unilateral termination, death of the attorney or the principal, loss of capacity and bankruptcy. In cases of death, loss of capacity and bankruptcy, the parties may decide otherwise to terminate the power of attorney agreement. The termination of the power of attorney by its unilateral will is called resignation, and the unilateral termination of the principal by its unilateral will is called dismissal.

In a contract of agency, for the contract to be terminated unilaterally, it is sufficient for the party who wants to terminate the contract to express their will to terminate. If the declaration of will regarding termination is made between the parties present, this declaration of will will immediately reach the addressee and will be learned by him. From this moment on, it will create the provisions of termination and the contract of agency will be terminated. (2) However, if this declaration of will is not made between the parties present, despite the contrary view in the doctrine, it is accepted that the consequences will arise with learning in the light of Article 514 of the TCC. Unilateral termination is not subject to any formality. It is possible to exercise this right openly or implicitly, and it is sufficient for the party to exhibit a behavior indicating that the right is being exercised. However, the will must be made in a way that will enable the addressee to learn this. Indeed, if the declaration of will is not directed to the other party, it will not be possible to produce legal consequences. In any case, it is preferred for it to be in writing in terms of proof.

Article 512 of the TCC grants the principal and the agent the authority to terminate the contract at any time. The right to revoke the power of attorney at any time belongs to the principal, while the right to terminate it belongs to the agent. (3) There is no time limit for unilaterally terminating the contract of agency. Both parties may terminate the contract unilaterally without any time limit, without seeking the consent of the other party, and without even having to provide a valid reason. However, if the contract of agency is terminated without a just cause and at an inconvenient and unfavorable time for the other party, the terminating party is liable to compensate the damages suffered by the other party as a result.

In case of unilateral termination, the agent is not entitled to the full amount of the fee but to the fair consideration for his own benefit. While the cost of the work done up to that point becomes due upon the termination of the agency contract, the principal is not able to demand the performance of the work not done.

Pursuant to Article 514 of the TCC, transactions made by the attorney who has not learned of the termination are valid. (4) In the EPATS system, which was put into practice on January 1, 2020, the following transactions can be made without the power of attorney and power of attorney control (5):
a) New Applications
b) Legal Transactions (Transfer, license, merger, division)
c) Third Party Transactions (Objection to publication, objection to the decision of the objection to publication made by the objector, etc.)
d) Trademark Registration Fee Payment Transaction
e) Trademark Renewal Transaction
f) Design Renewal Transaction
g) Patent Annual Fee Payment Transaction
h) Patent Compensation Fee Payment TransactionTBK’nın 514. maddesi uyarınca sona ermeyi öğrenmeyen vekilin yapmış olduğu işlemler geçerlidir.(4)

1 Ocak 2020’de uygulamaya geçirilen EPATS sisteminde aşağıdaki işlemler vekillik yetkisi ve vekâletname kontrolü olmadan yapılabilecektir(5):
a) Yeni Başvurular
b) Hukuki İşlemler (Devir, lisans, birleşme, bölünme)
c) Üçüncü Kişi İşlemleri (Yayına itiraz, itiraz sahibi tarafından yapılan yayına itirazın kararına itiraz vb.)
d) Marka Tescil Ücreti Ödeme İşlemi
e) Marka Yenileme İşlemi
f) Tasarım Yenileme İşlemi
g) Patent Yıllık Ücret Ödeme İşlemi
h) Patent Telafi Ücreti Ödeme İşlemi

Article 160 of the IPL includes the statement, “The Institution may request the presentation of the original or certified copy of the power of attorney indicating the authority of the attorney in cases it deems necessary.” In this case, since the Institution reserves the authority to request this without making any distinction between transactions, it will be beneficial in practice for the trademark/patent attorney to start the job with a written power of attorney agreement in all cases. Even if the attorney does not submit the power of attorney to the Institution during the transactions, he/she may keep it in his/her file.

These conditions are specified in Article 124 of the Regulation. In cases where a power of attorney is required, the person authorized by the power of attorney must have the authority to act as a proxy before the Institution. The power of attorney must be prepared in writing, including the authorization to represent, date information, and the identity information of the person giving and receiving the power of attorney. The original power of attorney or a copy of the power of attorney whose conformity to the original has been approved by the attorney with date information must be submitted to the Institution.

These procedures are specified in the 4th paragraph of Article 124 of the Regulation: “In order for the attorney to waive the right arising from the application or registration with the Institution, to withdraw the objection and to carry out the procedures that will partially or completely lead to these results, the original power of attorney clearly stating these authorities or a certified copy of the power of attorney in question must be submitted to the Institution.”

In addition, as stated in Article 160 of the CCP, persons domiciled abroad can only be represented by trademark or patent attorneys and must submit a power of attorney in their transactions. Transactions carried out by the principal without submitting a power of attorney are deemed not to have been carried out.

According to the 3rd paragraph of Article 124 of the Regulation, in transactions requiring the presentation of a power of attorney, if a power of attorney that meets the required conditions is not presented, the attorney is given a period of 2 months. If a power of attorney that meets the conditions is not presented within this period, the request or application is deemed not to have been made at all.

According to Article 124, paragraph 6 of the Regulation, in transactions conducted through a proxy, if a power of attorney that meets the required conditions has been previously submitted to the Institution and covers the requested transaction, and information regarding the previously dated power of attorney is provided, it is not necessary to resubmit the power of attorney. What is important in this regard is that the power of attorney must be a power of attorney that has been previously submitted to TURKPATENT and approved, and must contain the authority foreseen for the transaction to which it is allocated. If a transaction is to be conducted that is not covered by a power of attorney that has been previously submitted to TURKPATENT and approved, there is a requirement to submit a new power of attorney.

SMK’nın 160. maddesine göre bir marka veya patent vekili tayin edildiğinde tüm işlemler vekil tarafından yapılır. TÜRKPATENT uygulamada hem vekile hem vekâlet verene tebligat gönderse de, vekile yapılan tebligat asile yapılmış sayılır. Bu durumda süreler de vekile yapılan tebligat tarihinden itibaren işleyecektir.
Kurum nezdinde bir kişinin temsili amacıyla birden fazla vekilin tayin edildiği durumlarda, yetkilendirilmiş vekillerden herhangi birine bildirimde bulunulması yeterli olup, bu bildirim asile yapılmış sayılır. EPATS üzerinden yapılan vekil değişikliği işlemlerinde tebligat açısından sorun yaşanmaması adına sunulan vekâletnamenin mevcut vekil ile çalışmaktan vazgeçme kaydını da içerdiğinden emin olunması gerekmektedir. Aksi takdirde, önceki vekili azletmek için başvuru sahibinin çalışmaktan vazgeçme işlemini EPATS üzerinden gerçekleştirmesi ve her durumda eski vekile tebligatlar için bilgi vermesi faydalı olacaktır.

There are four transactions that can be performed on a power of attorney in EPATS. These are: proxy appointment, proxy change, withdrawal from proxy and renunciation of working with a proxy. A request for appointment as a second proxy can be made for an application conducted without a proxy or for an application currently being processed by a proxy.
A proxy change allows the dismissal of the current proxy and the appointment of a new proxy for an ongoing application or for all files of the applicant. The proxy to be submitted in this transaction must include a declaration regarding the new proxy to be appointed as well as a record regarding the dismissal of the current proxy. Otherwise, the current proxy will not be abandoned.
Renunciation of proxy is a transaction that can only be performed by the proxy and can be requested both on a per-file basis and for all files of the applicant.
Renunciation of working with a proxy means the dismissal of the proxy and can only be performed by the applicant.

According to Article 5 of the Turkish Patent and Trademark Office Regulation on Patent Attorneyship and Trademark Attorneyship Examination and Registration Procedures, legal entity attorneys must be represented by real persons who are patent attorneys or trademark attorneys.
A natural person attorney may use the power of attorney to represent only one legal entity attorney, even if he/she is a partner or employee of more than one legal entity attorney. Those who use the power of attorney in this manner cannot act as a natural person attorney. A natural person attorney is jointly and severally liable to the person granting the attorney, provided that his/her personal criminal liability is reserved.

TÜRKPATENT’in güncel uygulamasına göre, Dünya Fikri Mülkiyet Örgütü (“WIPO”) aracılığıyla TÜRKPATENT sistemine giriş yapan uluslararası marka başvuruları için vekil atama işlemi yapılamamaktadır. Ayrıca marka başvurusuna ilişkin işlemler vekil tarafından vekâletname sunularak gerçekleştirilse de (örneğin karara itiraz, yayına itiraza karşı görüş sunulması vb.), işlemin sonucuna ve markanın akıbetine ilişkin tebligatlar direkt olarak WIPO aracılığıyla asile yapılmaktadır.
WIPO aracılığıyla yapılacak tebligatlar Kurum tarafından doğrudan vekile yapılan tebligatlara göre daha geç ulaştığı gözlemlendiğinden, vekilin işlemi gerçekleştirdikten sonra uluslararası başvurunun durumunu düzenli olarak takip etmesi ve gelişme olması halinde tebligatı beklemeksizin müvekkiline haber vermesi önerilmektedir.

Article 19-(1)-1 of the Patent Attorney and Trademark Attorney Examination, Registry and Discipline Regulation titled “Professional Rules” is the following provision.

Article 19 (1) -l: The attorney may not consult with the owner of a file on a specific file which she knows or should know is already being handled by another attorney, unless the owner of the file has expressly expressed her wish to obtain an independent opinion or to change her attorney.

This provision clearly and explicitly means that in order for the attorney to exchange views with the owner of the file on a specific file that he/she knows or should know is currently being handled by another attorney, the owner of the file must have clearly stated his/her desire to obtain an independent opinion or to change his/her attorney. In other words, if it is not the case that the owner of the file requests an opinion on a file that is being handled by another attorney, it is against the professional rules for the other attorney to give an opinion on the file. As a result, the attorney may be penalized with a WARNING penalty.

Article 19-(1)-m of the Patent Attorney and Trademark Attorney Examination, Registry and Discipline Regulation titled “Professional Rules” also includes provisions that attorneys must pay close attention to. The provision of this paragraph is also below.

Article 19(1)-m: In a file followed by an attorney, if another attorney receives an instruction or power of attorney regarding the file, the new attorney shall promptly provide written information to the current attorney responsible for following up on the file. The current attorney shall forward all documents required for following up on the file to the new attorney upon request without delay.

This provision requires that in a case that is currently being followed by an attorney, if another attorney receives an instruction or power of attorney regarding the case, the attorney receiving the instruction MUST and WITHOUT DELAY provide written information to the current attorney assigned to follow up on the case. The current attorney who receives the notification is also required to forward all documents required for the follow up on the case to the new attorney without delay, upon the request of the next attorney assigned to the case. As a result of acting contrary to this provision, the attorney may be penalized with a WARNING penalty.