Which Law Governs an International IP Licence in Turkey? MÖHUK Article 28 for Trademark, Patent, Software and Know-How Contracts

1. Article 28 is the special contractual conflict rule for intellectual-property agreements

International IP disputes contain at least two legal layers: the contract between the parties and the underlying territorial intellectual-property right. Article 28 chooses the law governing the contractual layer.

A German company licensing a trademark to a Turkish distributor can choose German, Turkish or another appropriate national law for the licence contract, subject to mandatory rules and public order.

The existence, validity and infringement of a Turkish registered trademark remain linked to Turkish industrial-property law because intellectual-property rights are territorial.

2. Party choice is the first rule

Article 28(1) gives the parties freedom to select the law governing their IP contract.

The clause should be drafted clearly, particularly in agreements covering several countries. A phrase such as “the licence shall be interpreted under Turkish law” is more reliable than a general reference to “international commercial principles.”

The chosen law should be coordinated with arbitration, courts, territory, royalty currency and enforcement provisions.

3. Without a law choice, the transferor/licensor side supplies the default connection

Article 28(2) differs from the general Article 24 characteristic-performance test by expressly identifying the party transferring the intellectual-property right or its use.

The law of that party’s business establishment at contract formation applies; if there is no business establishment, the habitual-residence law applies.

This makes the identity of the actual licensor or assignor important in group-company transactions.

4. Corporate groups should identify the real IP owner and contracting establishment

A multinational group can have a holding company owning trademarks, an operating subsidiary providing support and a regional company issuing invoices. The contract should identify which legal entity grants the right.

If no law is chosen, that entity’s relevant business establishment can determine the default law.

Royalty flows and transfer-pricing arrangements do not by themselves change the contracting party.

5. A more closely connected law can displace the default

Article 28 contains a closer-connection exception. If all circumstances show that another legal system is more closely connected with the IP contract, that law can apply.

Factors can include territory of exploitation, negotiations, project location, performance duties and the commercial structure.

The exception should not be used mechanically merely because the licensed IP is registered in Türkiye; territorial validity and contractual law are separate questions.

6. Trademark licences combine contract law with Turkish industrial-property rules

A licence for a Turkish trademark can be governed contractually by foreign law, but the trademark’s existence, scope, infringement and registration effects remain subject to Turkish Industrial Property Law No. 6769 where the Turkish right is concerned.

Quality control, territory, sublicensing and royalty obligations belong to the contractual layer.

Recordal and third-party effect can require Turkish Patent and Trademark Office procedures regardless of governing law.

7. Patent licences have the same dual structure

The licence contract determines royalties, field of use, confidentiality, sublicensing and termination. The Turkish patent itself remains a territorial right.

A foreign governing-law clause cannot create patent protection in Türkiye where no Turkish or effective international patent right exists.

Patent validity disputes and licence-payment disputes therefore need separate classification.

8. Software contracts can fall under Article 28 when licensing is the essential obligation

Software transactions vary widely. A perpetual source-code licence, SaaS subscription, custom-development agreement and maintenance contract are not identical.

Where the essential obligation is granting copyright use, Article 28 is central. Where development services dominate, Article 24 or employment rules can also become relevant.

Our software development contract guide addresses substantive source-code/copyright issues separately.

9. Know-how and technology licences require confidentiality and ownership precision

Know-how may not be a registered right, yet the agreement can concern controlled use of confidential technical knowledge and can fall within the broader IP-contract analysis.

The contract should define what information is protected, permitted use, disclosure recipients, improvements and post-termination return/destruction.

Trade-secret and unfair-competition rules can operate independently of the chosen contract law.

10. Franchise agreements are mixed contracts

A franchise can combine trademark licensing, know-how, supply, marketing, training and distribution. Article 28 may govern the IP licence aspect while Article 24 or other rules govern additional obligations.

Parties often select one law for the whole franchise agreement to avoid fragmentation, but mandatory Turkish competition and commercial rules can still apply.

The actual economic structure should be mapped before assuming one conflict article controls every clause.

11. Article 23 separately governs the underlying IP right

MÖHUK Article 23 provides the conflict rule for intellectual-property rights themselves, generally connecting them to the law of the country for which protection is sought.

Article 28 governs the contract. This distinction is fundamental.

A contract governed by English law can still involve Turkish-law questions of Turkish trademark infringement or validity.

12. Contract validity and IP-right validity are not the same

A licence can be contractually valid while the underlying patent is later invalidated. The consequences then depend on the contract, applicable law and IP statute.

Conversely, a valid trademark does not make every royalty or exclusivity clause enforceable.

Competition law and unfair-contract doctrines can affect contractual terms.

13. Employee-created intellectual property follows the employment contract law

Article 28(3) expressly provides that agreements between employee and employer concerning intellectual products created within the employee’s work and during performance are governed by the law applicable to the employment contract.

This avoids applying the general licensor rule to a relationship fundamentally based on employment.

Our Article 27 employment guide explains that conflict rule.

14. Competition rules can override restrictive licence provisions

Territorial restrictions, resale-price obligations, exclusivity, non-competes and technology restrictions can trigger Turkish Competition Law No. 4054 where the Turkish market is affected.

MÖHUK Articles 31 and 38 and Turkish directly applicable rules can therefore matter despite foreign governing law.

IP ownership does not create unlimited freedom to restrict competition.

15. Registration and recordal are territorial administrative matters

Assignments and licences of registered Turkish trademarks, patents or designs can require documentation before the Turkish Patent and Trademark Office for registry and third-party purposes.

A foreign-law contract should be drafted so it can be used in Turkish recordal procedures, including apostille/legalisation and translation where required.

Corporate authority of the signatory should also be documented.

16. IP contracts commonly use arbitration, but territorial IP remedies may remain court-based

Royalty, breach and termination disputes can often be arbitrated under a valid arbitration clause. Certain validity or registry issues can require action before Turkish authorities or courts.

Forum and governing law should therefore be coordinated with the remedies the parties may actually need.

Interim injunctions against infringement can require urgent Turkish court action even where the contract uses foreign arbitration.

17. Foreign-law evidence should address the contract issue, not the territorial IP right

If Article 28 designates foreign law for the licence, the Turkish judge applies that law ex officio under Article 2.

Parties should submit legal material on interpretation, termination, royalties and contractual remedies under that law.

Separate Turkish law should be presented for Turkish registered-right validity or infringement issues.

Conclusion

MÖHUK Article 28 separates international IP contracts from ordinary commercial agreements. Party choice controls first; without choice, the licensor/transferor’s establishment or habitual residence provides the default, subject to a closer-connection exception. Employee-created IP follows the employment contract law. The most important drafting lesson is to distinguish the governing law of the licence from the territorial law governing the underlying trademark, patent, copyright or design right.