Protection Of Digital Fonts Under Copyright, Design Law And Unfair Competition Regulations

With the digitalisation of commerce, digital fonts are no longer just an element of design; they have become an integral part of brand identity and commercial communication. It is now possible for original digital fonts to enjoy protection under copyright and design law, as explained in our article, https://gun.av.tr/tr/goruslerimiz/guncel-yazilar/dijital-yazi-tiplerinin-telif-ve-tasarim-hukuku-bakimindan-korunmasi. In addition to copyright and design law, digital fonts may also be protected under the regulations for unfair competition. Article 54 et seq. of the Turkish Commercial Code (“TCC”) also foresees protection for digital fonts. This article addresses the protection under unfair competition provisions.

In our previous article, it was stated that digital fonts can be protected by copyright only if they have the characteristics of the creator and unique feature. It was also explained that code blocks constituting the fonts may be considered as a computer programme and it would be considered as literary and scientific works under Article 2 of the Law on Intellectual and Artistic Works (“LIAW”) and calligraphic work under Article 4 of the LIAW. Therefore, it can be protected under copyright provisions. Although there are currently no precedents on the protection of fonts, there are decisions of American Courts (Adobe Systems Inc. v Southern Software Inc.¹) and Chinese courts (Founder Electronics Co Ltd v. Blizzard Entertainment²) stating that digital fonts can be protected under copyright. A more details account can be found in our article at https://gun.av.tr/tr/goruslerimiz/guncel-yazilar/dijital-yazi-tiplerinin-telif-ve-tasarim-hukuku-bakimindan-korunmasi.

In the referred article, we explained that digital fonts should be protected under design law, in addition to copyright law. In accordance with Article 55(2) of the Industrial Property Code (“IP Code”), fonts created through graphic design techniques and intended to ensure legibility and attract attention may also be protected under design law, provided that they are novel and have distinctive character.

Unfair competition provisions are of a complementary nature and may be relied upon to support the protection of digital fonts, either in cases where fonts are not regarded as works of art or as an additional basis reinforcing such protections.

Protection of Digital Fonts in Respect to Unfair Competition

In accordance with Article 54 of the TCC, unfair competition refers to acts contrary to the rule of good faith between competitors or in supplier-customer relations. The TCC does not limit unfair competition to infringement of certain rights; it is based on the protection of honest trade and integrity in competition. In this respect, unfair competition provisions constitute an important legal basis in cases where there is no intellectual property protection or where it is insufficient.

Besides, inclusion of an extremely broad concept as “all parties” in the provision of Article 54(1) of the TCC, which states “The purpose of the provisions of this Section relating to unfair competition is to ensure honest and integrity of competition for the benefit of all parties”, prevents the rules relating to unfair competition from being limited only to the relations among competitors. In this context, by expanding the scope of protection of unfair competition law, the legislator has aimed to protect not only competitors, but also all interest groups involved in the competition process, including the traditional triad of competition law: economy, consumers and the public. In this regard, if digital fonts are considered as commercial products of enterprises, unfair and unauthorised use of such fonts by other parties can be prevented in accordance with the provisions relating to unfair competition.

To discuss unfair competition, three conditions must be the case:

1. The competition is related to the economic aspect, with acts intending to generate income;
2. The acts alleged to constitute unfair competition are contrary to the rules of good faith;
3. The acts alleged to constitute unfair competition lead to economic loss.

In the context of digital fonts, unfair competition—particularly under Article 55/1-c of the TCC—may arise where an original font developed through a design process is used without authorization, thereby constituting unauthorized exploitation of another party’s work product. There is no question that the use of another’s font without authorisation is against the law and commercial practice.

It should not be forgotten that digital fonts are not only an aesthetic factor in modern commercial life, but also a product of enterprises which add economic value. Therefore, the protection of digital fonts should not be limited to copyright and design law; in cases where relevant provisions do not provide sufficient protection or inapplicable, provisions concerning unfair competition may also be applied. Hence, Article 54 et seq. of the TCC provides wide protection, taking in its scope unauthorised use of digital fonts and that which is contrary to accepted commercial practices in accordance with the principle of “honest competition and integrity of competition”. Unauthorised use of fonts, especially those which are the product of an original design process, may constitute unfair exploitation of work and may be subject to sanctions relating to unfair competition. Thus, it is important to adopt a multifaceted approach concerning the protection of digital fonts and to assess provisions relating to copyright, design and unfair competition together and to complement each other; this shall make it possible to protect both the interests of right holders and the integrity of fair competition.

Footnotes

1. Adobe Sys., Inc. v. Southern Software Inc, C95-20710, 1998.

2. https://www.managingip.com/article/2a5bxi588dmdrizkngwlc/how-to-protect-typefaces-and-fonts

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.