ABSTRACT
The study evaluates the monetary value of trademarks, patents, design rights, and copyrights included in the group of acquired property and their distribution between spouses.
I. INTRODUCTION
In our civil law system, a property regime relationship arises between spouses upon marriage. Unless otherwise agreed, the legal property regime applied is the regime of participation in acquired property. According to this regime, properties considered “acquired” are subject to liquidation between spouses after divorce. Although they are not tangible assets, intellectual and industrial rights such as trademarks, patents, designs, and copyrights, due to their economic value, can also be included in the liquidation as acquired property within the framework of the regime of participation in acquired property.
Within the scope of Turkish family law, a property regime relationship arises between spouses with the establishment of the marital union. Before January 1, 2002, the “Separation of Property” regime was legally accepted. Still, with the enactment of the Turkish Civil Code1 No. 4721 (“TCC”) on the mentioned date, the legal property regime was determined as the “Regime of Participation in Acquired Property” by law. One of the optional property regimes, which include (i) separation of property, (ii) separation of property with distribution, and (iii) community of property, is the regime of participation in acquired property that spouses will be subject to upon the completion of the marriage contract without having any choice. In practice, it is often observed that spouses do not choose a property regime and, therefore, are subject to the legal property regime. In the legal property regime, the principle is that no property valuation/distinction is made as long as the marriage continues; in the event of the termination of the marriage for any reason, the distinction between the acquired property and personal property of the husband/ wife is made during the liquidation of the properties. In this respect, it is essential to determine the personal properties, which are limitedly defined by law, and the acquired properties, which are exemplified in accordance with their general definition. Because, unlike acquired properties, the personal properties of the spouses are not subject to liquidation.
II. APPLICATION OF PROPERTY REGIME IN TURKISH LAW
A. General Overview
Pursuant to Article 202 of the TCC, the application of the regime of participation in acquired property between spouses is the default. However, according to the same article, it is also possible for spouses to accept one of the other regimes determined by law through a property regime contract. With the enactment of the TCC, Article 170 of the Turkish Civil Code No. 743 (“eMK”) was repealed, and the regime of participation in acquired property was accepted as the legal property regime. Accordingly, instead of the provision “If the husband and wife do not accept one of the other methods specified in the law with a marriage contract or if one of the reasons specified in the law occurs after acceptance, separation of property will apply between them,” it has been regulated that, unless otherwise stipulated by the parties, the distribution between spouses will be based on the regime of participation in acquired property from January 1, 2002, onwards2.
Before explaining the legal property regime of participation in acquired property, it will be useful to provide brief information about the concept of property regimes and its place in Turkish law. Within the scope of Turkish family law, the idea of a property regime refers to the regulation of the rights spouses have over the properties they own or acquire before and during the marriage and the liabilities that will arise. In this respect, the ability of spouses to claim rights over properties acquired before or during the marriage, the evaluation of whether the claimed right is a receivable or a fundamental right, and the assessment of the liabilities related to properties owned before or during the marriage will be carried out by considering the property regime. While spouses are free to choose one of the optional property regimes (separation of property, separation of property with distribution, community of property), it can be said that due to Turkish traditional relationship types, family structure, traditions, etc., spouses refrain from choosing a property regime and therefore prefer to be subject to the legal property regime. In this respect, it is known that deciding what the legal property regime will be is important and that comprehensive studies have been conducted on this issue3.
B. Legal Property Regime: Regime of Participation in Acquired Property
Pursuant to Article 218 of the TCC, acquired property and each spouse’s personal property are within the scope of the regime of participation in acquired property. This regime has two independent and differently owned types of property. These are the woman’s property and the man’s property. The woman’s property and the man’s property are also classified dually. Accordingly, the property of each spouse is examined under two groups: one as acquired property and the other as personal property. Consequently, there are four different classes of property: (i) the man’s acquired property, (ii) the man’s personal property, (iii) the woman’s acquired property, and (iv) the woman’s personal property4.
Although the main distinction in the legal property regime is between acquired property and personal property, this distinction does not matter during the marriage, in other words, while the legal property regime continues. This distinction becomes relevant when the property regime ends and during its liquidation5.
Before moving on to the distinction between acquired property and personal property, it is necessary to mention some principles related to “property” in the legal property regime According to Article 219/f-1 of the TCC, the acquired property values consist of the property values that each spouse acquires by providing consideration while the marital union continues. The doctrine related to this article states that the term “consideration” can be explained with the concept of “counter-performance” in debt relations. In this respect, if the acquired property is obtained with consideration, its value is evaluated within the group of acquired property. Property values acquired without consideration are considered personal property. Although consideration is the essential factor in distinguishing between acquired property and personal property, there are exceptional situations to this rule. For example, some property values are regarded personal property despite having been bought with consideration, and others are deemed acquired property even if acquired without consideration. It should be noted that if the consideration is provided from one of the spouse’s personal property, the property acquired with consideration should be regarded as personal property. This issue is explained in the doctrine with the “substitution principle”6.
Another principle is the immutability of property groups in the regime of participation in acquired property. According to Article 221 of the TCC, although it is possible to determine some property values as personal property through a property regime contract between spouses, except for this exception, the provisions regulating which property falls under which category are mandatory and cannot be otherwise stipulated.
On the other hand, according to a view defended in the doctrine, it is impossible to accept part of a property value as acquired property and part as personal property. In other words, if both personal property and acquired property are involved in the acquisition of a property value, it is accepted that the acquired property is predominantly in the group that contributed more, and an adjustment is made in favor of the other property group.
If the contributions are equal, it is stated that the property in question will be considered acquired property within the “preference principle” framework, and an adjustment will be made in favor of personal property. It should be noted that the preference principle is explained as a principle that, in the process of determining which class the property subject to the property regime belongs to, if it cannot be definitively said which group a property belongs to, the property should be considered as the acquired property of the husband or wife7.
1. Acquired Property
According to Article 219 of the TCC, the concept of acquired property is defined as “the property values that each spouse acquires by providing consideration during the continuation of this property regime.” Accordingly, for a property to be considered acquired property, the following conditions must be met together: (i) it must be acquired during the property regime, and (ii) it must be acquired by providing consideration. The condition of being acquired during the property regime means that the property must be acquired within the period from the beginning to the end of the regime of participation in acquired property. At this point, since the legal property regime is the regime of participation in acquired property, it will come into effect with the completion of the marriage contract without the need for the spouses to choose it. Another condition is that for a property or property value to be considered acquired property, it must be acquired by providing consideration. The concept of being acquired by providing consideration is divided into two: acquisition with consideration and acquisition without consideration. According to Article 219 of the TCC, only property values acquired with consideration have the nature of acquired property. The consideration in acquiring property or property value can be in different forms: the transfer, limitation, modification, or termination of a right in the person’s property and/or physical or intellectual activity8.
Legal examples of acquired property are listed in Article 219 of the TCC as examples. It is emphasized in the doctrine that this listing is illustrative, not exhaustive: acquisitions in return for work, payments made by social security or social assistance institutions and organizations or funds and similar organizations established to assist personnel, compensations paid due to the loss of working capacity, incomes of personal property, and values that replace acquired property9.
2. Personal Property
In the legal property regime of participation in acquired property, personal property can be examined as personal property by law and personal property by contract. In the TCC, personal property is listed in a limited manner by law. According to Article 220 of the TCC, the following can be considered personal property by law: (i) items that are used exclusively for the personal use of one of the spouses, (ii) property values that belonged to one of the spouses at the beginning of the property regime or that were acquired by one spouse later through inheritance or any other way without consideration, (iii) compensation claims for non-pecuniary damages, (iv) values that replace personal property.
In the doctrine, some characteristics of personal property in the regime of participation in acquired property are mentioned. The first of these is the principle that personal property cannot be subject to liquidation. Since the acquisition of personal property does not involve the contribution of the other spouse through labor or the effect of the division of labor/unity in the marital union, property acquired without consideration should be excluded from liquidation. The second characteristic of personal property is that family courts should determine personal property. Another point is that according to the provisions of the eMK, property acquired during the period when the regime of separation of property was in effect is considered personal property. The fourth characteristic is that property acquired when the property regime ends is considered personal property. Finally, property acquired before the regime of participation in acquired property is considered personal property10.
On the other hand, according to Article 220 of the TCC, personal property by contract includes property values that should be included in acquired property due to the performance of a profession or the activity of a business and the income of personal property (which is actually the value of acquired property). However, for these values to be included in personal property, the spouses must agree on this matter11.
III. INTELLECTUAL PROPERTY RIGHTS AS ACQUIRED PROPERTY
A. Concepts of Intellectual Product and Intellectual Rights
Works created by the human mind, thoughts, and emotions are intellectual products, and because these products are intangible (abstract), they cannot be subject to possession within the classical property theory. For intellectual products to be perceptible outside the human mind, they need to be given a form of existence. For example, transcribing a musical composition onto paper with the help of notes or a painting created by an artist is a way of bringing an intellectual product into existence12.
Rights referred to as intellectual property rights cannot be considered real rights because intellectual products are not accepted as tangible goods. However, since they carry economic value, intellectual property rights are included in the category of property rights, and to the extent that they are personal, they are also included in the category of personal rights. This situation leads to the evaluation of intellectual rights as absolute rights. Absolute rights are those that provide direct sovereignty to the owner and can be asserted against everyone. In this context, as an absolute right, intellectual property rights grant the owner various authorities, including the right to prohibit13.
Intellectual products can take various forms; for example, works of science, literature, and fine arts, as well as inventions, designs, patents, and utility models, are among intellectual/ industrial products. However, there is a distinction between intellectual products such as works of thought and art, inventions, designs, patents, and utility models. Since works of thought and art fall under copyright law, registration is not required to protect these rights. In contrast, industrial rights such as inventions, designs, patents, and utility models are protected through registration14.
B. Rights Granted to Intellectual Property Owners
Under the Law on Intellectual and Artistic Works No. 5846 (“LIAW”)15, the author of a work is the person who creates the work, and the economic rights of the author/owner of the work include the rights to process, reproduce, distribute, perform, and publish as regulated between Articles 21-25, as well as the right to receive a share from the sales proceeds of fine arts works as regulated in Article 45. The rights that provide the opportunity to economically benefit from the work are enumerated in the law in a limited manner and are divided into five categories.
The economic rights of the author/ owner of the work are also subject to the transfer and licensing of economic rights, which is also known in practice as the transfer of copyright. Among these, the transfer of economic rights contract involves the complete transfer of the six rights mentioned above to the transferee. In contrast, in the case of licensing, the usage rights based on these six rights are transferred to the licensee16. In addition to economic rights, the author also has moral rights over the work. The moral rights, which include the right to disclose the work to the public, the right to have the author’s name mentioned, and the right to prevent alterations to the work, cannot be transferred. However, in the case of the complete transfer of economic rights, it can be accepted that consent is given for the use of some moral rights. For example, transferring the right to process may require alterations to the work, which directly affects the use of moral rights. Similarly, the transfer of the right to distribute, which involves presenting the work to the public, can be interpreted as transferring the right to disclose the work to the public to the transferee17.
It was mentioned that the ownership of industrial property products such as trademarks, patents, and designs is established through registration/ application. The exclusive rights provided to the owner of the products subject to ownership regulated in the Industrial Property Law No. 6769 (“IPL”) are discussed rather than the economic/ moral rights. The exclusive rights of the industrial property right owner include the right to produce, the right to sell, the right to import and export, the right to lease, the right to stop infringement, the right to protect, and the right to use.
C. Liquidation of Rights Subject to Intellectual Property
Under the legal regulation, acquired properties must constitute an asset value. It is stated that property rights are asset values that are included in property assets. At this point, property rights that carry economic value are specified as real rights related to movable and immovable properties, receivables, rights that create innovation, legal and natural products, expected rights, and intellectual rights in a material sense18.
Under the legal regulation, acquired properties must be the result of work. It is not essential to name the asset values obtained by the spouses in return for their work as salary, bonus, or gratuity. It is possible to interpret the work as the creation of an intellectual product, and it is argued in the doctrine that rights over trademarks, patents, etc., should be considered acquired property19. However, there is also the view that the acquisition of intellectual products and their economic rights should be examined separately for each case. For example, while there is no doubt that the income obtained from the work created by a professional artist will be considered acquired property, there is a view the work of an amateur author - in addition to their primary income - will not be considered acquired property. The view that works created due to amateur activities are considered personal property argues that not everything obtained by spouses through their labor can be considered acquired property20. Indeed, it can be thought that the sharing of economic rights (“right to process”, “right to reproduce”, “right to distribute”, “right to perform”, and “right to communicate to the public”) between spouses due to the liquidation of the property regime would mean consent to the use of moral rights, which would contradict the fact that moral rights related to intellectual property products such as copyrights (right to disclose to the public, right to have the author’s name mentioned, and right to prevent alterations to the work) are strictly personal rights.
Since the economic values of intellectual products will be taken as the basis in liquidation, a valuation process must be carried out. For example, a company’s brand value owned by one of the spouses should be evaluated within the framework of an expert report21. At this point, factors such as how frequently the brand is used in the market and the values of comparable license agreements can be considered.
In the matter of determining the value of the brand, the extent to which brand infringement claims should be considered has not been addressed in doctrine and practice. If there is a claim of invalidity due to infringement, it can be considered that this issue will be made a pending matter. Finally, it can be accepted that it is not reasonable to take the asset value of each intellectual product directly, such as trademarks, patents, and copyrights included in the liquidation. It may be appropriate to have a provision that intellectual products will not be included in the liquidation unless they have a minimum asset value.
IV. CONCLUSION
Although there is no precise legal regulation on whether intellectual property rights are included in the scope of acquired property, it is argued that intellectual property rights can be considered as acquired property due to their economic value and as acquisitions in return for work, as specified in Article 219 of the TCC. However, another view is that works obtained as a result of amateur activities may remain within the scope of personal property and that each case should be evaluated individually.
During the liquidation phase, an expert report should determine the economic values of intellectual products, and factors such as comparable license agreements and brand infringement claims should be considered. However, including intellectual products in the liquidation would be appropriate if they have a minimum asset value. In conclusion, this study aims to shed light on the place of intellectual property rights within the regime of participation in acquired property in Turkish family law and highlight the importance of more explicit legal regulation and a consistent approach in practice in this area.
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FOOTNOTE
1 Official Gazette dated 08.12.2001, No. 24607.
2 İlhan Helvacı, Turkish Civil Code Volume II Family Law, 1st Edition, On İki Levha Publishing, İstanbul, 2013, p. 225.
3 Ahmet M. Kılıçoğlu, Family Law, 7th Edition, Turhan Bookstore, Ankara, 2024, p. 226-282.
4 Mustafa Dural/ Tufan Öğüz/ Mustafa Alper Gümüş, Turkish Private Law Volume III Family Law, 15th Edition, Filiz Publishing House, Istanbul, 2020, p. 229.
5 Metin İkizler/ Özlem Tüzüner, Civil Law II Family Law, 1st Edition, Adalet Publishing House, Ankara, 2023, p. 275.
6 Aydın Zevkliler/ Emre Cumalıoğlu/ Mehmet Beşir Acabey, Civil Law-III Family Law, 1st Edition, Adalet Publishing House, Ankara, 2024, p. 134-137.
7 Zevkliler/ Cumalıoğlu/ Acabey, p. 138-139.
8 Süleyman Yılmaz, Civil Law Volume III Family Law, 1st Edition, Yetkin Publishing, Ankara, 2023, p. 349-350.
9 Yılmaz, p. 351.
10 Yusuf Uluç, Property Regimes and Their Liquidation, 1st Edition, Yetkin Publishing, Ankara, 2014, p. 337-340.
11 Uluç, p. 384-388.
12 Ünal Tekinalp, Intellectual Property Law, 4th Edition, Arıkan Publishing, İstanbul, 2005, p. 6.
13 Tekinalp, p. 7.
14 Şafak N. Erel, Turkish Intellectual and Artistic Law, Yetkin Publications, Ankara, 2009, p. 28.
15 Official Gazette dated 13.12.1951, No. 7981.
16 Halil Alperen, Universal Copyright Convention and Transfer of Rights, 2nd Edition, Seçkin, Ankara, 2021, p. 157-165.
17 Tekinalp, p. 153-154.
18 Suat Sarı, Participation in Acquired Property as the Legal Property Regime in Marriage, 1st Edition, Besir Bookstore, Istanbul, 2007, p. 135-136.
19 Faruk Acar, Property Regimes in Our Family Law and the Legal Inheritance Share of the Spouse, Seçkin, Ankara, 2007, p. 47.
20 Sarı, p. 144; Zafer Zeytin, Participation in Acquired Property Regime and Its Liquidation, Seçkin, Ankara, 2008, p. 99.
21 Court of Cassation 8th Civil Chamber, Dated 21.06.2016, Case No. 2016/202, Decision No. 2000/7383.
