Turkey: Using Unfair Competition Provisions To Protect Intellectual Property Rights In Turkey

Using Unfair Competition Provisions To Protect Intellectual Property Rights In Turkey

There comes a point where trademark registration is not enough to protect a company's intellectual property rights from infringement. In these circumstances, the unfair competition rules under the Turkish Commercial Code (TCC) become relevant. Businesses have come to view these provisions as highly important in protecting intellectual property rights. This article considers how the Turkish courts have applied the unfair competition provisions of the TCC to trademarks and designs.

As everyone knows, best-selling products sold under well-known trademarks are targets for infringers. Clever infringers seem to constantly find confusing loopholes to exploit and thereby skirt around the scope of protections provided by trademark registration. In cases where the infringer does not use a company's trademark and the company does not have any design registration for the package, businesses should consider the redress available under the unfair competition rules of the TCC. In recent years, the Turkish courts have rendered many promising decisions for businesses in this regard.

Recent amendments to the TCC aimed to widen implementation of the unfair competition provisions. The explicit purpose of the unfair competition provisions in the TCC is to create fair and uncorrupted competition for the benefit of all participants, including competitors and customers.

The principle underpinning the TCC's unfair competition rules is common in Turkish Civil Law. This principle says parties must act "as a prudent businessperson and in a bona fide manner". The TCC defines unfair competition as (i) any misleading act or commercial practice that has an impact on competitors or on relations between customers and suppliers and (ii) any act or commercial practice that violates the bona fide principles. Therefore, in addition to the usual intellectual property avenues, businesses protecting their intellectual property rights should evaluate infringement under these two areas of the TCC as well.

Article 55 of the TCC provides a detailed but non-exhaustive list of acts which constitute unfair competition. One of the examples provides board protection to companies when trademark protection is not enough, stating that "to create confusion with others' businesses, business products or activities is unfair competition" (article 55 (1) a-f). Based on this definition, many courts have found the existence of unfair competition in lawsuits. Some examples of this and the courts' approach are outlined below.

Calgon v Peros (2012)

The 11th Civil Chamber of the Court of Appeals affirmed the Court of First Instance's decision that the Peros packaging was found to be confusingly similar to the Calgon packaging. The court said:

"Although the trademarks are not similar, the packagings are confusingly similar and it creates a likelihood of confusion. Therefore even though there is no specific trademark infringement, there is still unfair competition in this case ..."

Nivea Soft v Rebel Soft (2006)

The 11th Civil Chamber of the Court of Appeals affirmed the Court of First Instance's decision that the Rebel Soft cream packaging was confusingly similar to the Nivea Soft cream packaging. The court said:

"The trademarks 'Nivea Soft' and 'Rebel Soft' are not similar, therefore there is no trademark infringement in this case. Both cream jars are in white, dark blue (navy) and green colors.

"An average consumer might think that the products are manufactured by the same company. There isn't any technical or functional necessity to select the same colors, therefore it can be deemed that the defendant used the package to unfairly benefit from the plaintiff's commercial success. Therefore there is no trademark infringement but there is unfair competition in this case ..."

Danino v Büyümix (2012)

The 11th Civil Chamber of the Court of Appeals affirmed the Court of First Instance's decision that the Büyümix yoghurt packaging was confusingly similar to the Danino yoghurt packaging. The court said:

"The packaging is similar enough to mislead the consumer, especially considering that the subject products' consumers are mainly children and the method of placing the subject products on to shelves, which reinforces the possibility of delusion.

"Despite a lack of technical necessity, the defendant replaced its former packaging with a new packaging which was confusingly similar to the complainant's style of packaging. It was decided that replacing the packaging constituted unfair competition since it misled the consumer by being confusingly similar."

Although these court cases are promising for businesses, it is important to note that the courts do not protect all infringed unregistered rights. The unfair competition provisions regulate unfair competition acts occurring within Turkey. Therefore, in order to establish the existence of an act that constitutes unfair competition, the infringing product must have been used in the Turkish market (i.e. the product should be in the market or its packaging should be used).

Article 62 of the TCC outlines the punishments associated with the unfair competition provisions. This states that (among other things) those who intentionally commit acts of unfair competition or intentionally provide false or misleading information in order that their offers and proposal are given preference above those of competitors may be fined or receive two years of imprisonment.

Taking into account the court cases discussed above, there should usually be reasonable grounds to challenge intellectual property infringers who attempt to skirt around the scope of existing legal protections. Therefore, where businesses find their intellectual property rights are not sufficiently protected from infringement, they should not neglect to investigate whether the TCC's unfair competition rules provide protection.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Işık Özdoğan, LL.M.
Ezgi Baklacı Gülkokar, LL.M.
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions