THE GYPSY GIRL
Özlem Futman, 4 April 2004 / Trademark World

The fascinating ancient city of Zeugma is located on the river Euphrates, 10 kilometres east of the Turkish city of Gaziantep. It lies at one of just two points where the great river can be crossed easily, and the name Zeugma means “gate” or “bridge-head”.

Seleukos I Nicator, one of Alexander the Great’s commenders, established two cities along the river Euphrates. The city on the eastern part (Apameia) was dedicated to his wife, and the western one was called Seleukeia in honour of Seleukos himself. Later, that western city came to be called Zeugma, one of the four major cities of the kingdom of Commagene.

By the time of the Roman Empire,Zeugma was enjoying a sophisticated cultural life as the base for a Roman legion, and was to prosper for 200 years. In addition to its military importance, the city played an important role in the Silk Road trade between the first and second centruies AD. In approximately 252 AD.,however, Zeugma was burned and demolished by Sassanids.

The first legal excavation took place in 1987 . In 1992, a turnel dug by treasure hunters was found in the central part of the city, and was found to be full of looted Roman mosaics. Continuing excavation of Zeugma’s Roman villas has yielded a collection of mosaics that surpasses what was previously the world’s greatest collection, in Tunis.

Of all the mosaics discovered, one has become the symbol of the city itself. During the excavation taking place over the 1998-1999 season, a mosaic now known as the Gypsy Girl was discovered. Also called “The Mona Lisa of Zeugma”, the beautiful image was found on the floor of a Roman villa. It had been partially destroyed by treasure hunters, but nevertheless they couldn’t erase the girl’s impressive look.

The final demolition of this amazing ancient city started in the 1990s when a plan to develop the economy of the region saw construction of a dam on the river Euphrates. Zeugma, along with other river cities, was to be flooded. The archaeology, however, was not completely lost; an article published in the New York Times on 9 May 2000 attracted international support and funding for a final burst of excavations, allowing archeologists to rescue as many antiquities as they could.

Today, Zeugma is largely covered with water, and only the antiquities awaiting visitors in the Gaziantep Archeological Museum hint at the splendid past of the city.

A rush of applications

After the city became famous, not only archeology lovers, but the commercial community became interested in the city. After the year 2000, many trademark applications made up of the word ZEUGMA and the picture of the GYPSY GİRL have been filed.

The Turkish Patent Institute accepted nearly all of the applications consisting of the word ZEUGMA and the Picture of the GYPSY GIRL. The examiners had, however, failed to study the provisons of the Turkish Trademark Law, article 7/h.This provides that signs containing badges, emblems or escutcheons other than those covered by Article 6ter of the Paris Convention which have not been authorised by the competent authorities and are of particular historical and cultural public interest shall not be registered as a trademark.

Article 34 provides that any natural or legal person, or any group representing manufacturers, producers, suppliers of services, traders or consumers may submit to the Institute their written observations that the trademark does not conform to the registration requirements in accordance with the Articles, following the publication of the trademark application.

To test the functioning of both the law and practice, I decided to file a third-party observation contesting the Turkish trademark application ZEUGMA + GYPSY GIRL (application number 2001/01454) based on the article 7/h.

In my observation writ I gave a brief explanation of Zeugma’s history and used this as a basis that the picture of the GYPSY GIRL ,could not be given any person or company’s possesion by trademark registration, because it is a world heritage item. Meanwhile ,I submitted a book to the Institute which is written by the archeologists who worked in ZEUGMA excavations. The cover page of the book consists of the picture of the GYPSY GIRL.

A response from the Turkish Patent Institute with respect to my observation stated that they accept the GYPSY GIRL as a cultural heritage item and the application (which I opposed) was found not to conform to the registration requirments in accordance with Article 7/h.Signed by the head of the trademark department, the response was also interesting in that, where all devices in trademark application are only reffered as “device”,in this case the Institute had chosen to refer to the image specifically as “the GYPSY GIRL” as per my observation writ.

The problem

Unfortunately,the story does not end with this decision. Trademark applications continued to be accepted,and this time instead of filing a third party observation ,I directly petitioned the head of the Turkish Patent İnstitute, to take actions against the applicants. I also proposed submitting colour photocopies of the GYPSY GIRL to all examiners in the Institute.

As a result ,after the warning ,the Institute refused all the ongoing applications regarding the picture of the GYPSY GIRL.

Thsi does not mean ,however, that there will be no further applications for the same or different classes containing the picture of the GYPSY GIRL. When a trademark application is filed, the Turkish Patent Institute examines it first according to the absolute grounds.

While examining an application in this way, the examiners use a computer program. However ,this search only indicates the existence of devices, it does not display the devices themselves. Instead, all devices are collected in a catalogue that is separated according to the shapes of devices, eg birds, bridges, etc, and the examiners must check the catalogue manually. For example, if your application contains a bird’s picture ,the examiner should look at the related pages of the catalogue and should compare all bird devices.It is clear that this system is risky because it is easy to miss any device that is the same or similiar to the trademark applied for.

This situation ,arising as it does from a national icon,must surely underline the risks faced by owners of device marks generally.Unlike the systems used in most other countries ,the Turkish system regards previous applications /registrations as absolute grounds. The same catalogue system is used to monitor previous applications /registrations for trademarks the same as or confusingly similiar to the trademark applied for. Therefore,the same danger of oversight is present.

Trademark applicants(or owners of Marks registered in Turkey)that contain a device, will need to be very careful indeed in protecting it. Applications by other parties must be monitored very carefully ,and the decisions of examiners regularly questioned.

On this point I would like to share a recent development on this issue . The Turkish Patent Institute is now working on a computer system where all device marks can be seen on the computer screen. They are trying to transfer all the devices to their computer system, and we hope that in the near future the examiners will see the images of the devices in their computer.

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