In January 2015, the Turkish Ministry of Customs and Trade issued the Regulation on Commercial Advertisements and Unfair Commercial Practices ("Regulation") on the principles and procedures pertaining to advertising activities, which repealed and replaced the previous regulation that had been in effect since 2003. The Regulation lifted the ban on comparative advertisements and included a provision that allowed the use of competitors' names, trademarks, logos and other distinguishing marks or expressions, along with competitors' trade names and business names in comparative advertisements, provided that such advertisements complied with the provisions set forth therein, under Article 8 of the Regulation.
The relevant provision was expected to enter into force on January 10, 2016, but an amendment to the Regulation was published in the Official Gazette of December 25, 2015, postponing the effective date of this provision to December 31, 2016. Later, with yet another amendment, the effective date of the provision was postponed to January 1, 2018. Finally, pursuant to an amendment published on December 31, 2017, the effective date was amended as January 1, 2019. On December 28, 2018, only a few days before the anticipated effective date of the provision, the Regulation Amending the Regulation on Commercial Advertisements and Unfair Commercial Practices ("Amendment Regulation") was published in the Official Gazette.
The Amendment Regulation repealed Article 8/2 of the Regulation, which allowed the use of competitors' names, trademarks, logos and other distinguishing marks or expressions, along with competitors' trade names and business names, in comparative advertisements.
The Amendment Regulation also amended the definition of "comparative advertisement' as "advertisements containing comparisons between competitors' products or services for the same purposes and needs'' whereas it had previously been defined as "advertisements wherein elements relating to competitors' products or services are used impliedly or directly."
The Amendment Regulation inserted a provision into Article 8/1 of the Regulation prohibiting the use of product names, trademarks, logos, trade names, business names and other distinctive elements belonging to one's competitors in comparative advertisements.
The abrogated predecessor of the Regulation stated that comparative advertisements could only be displayed when: (i) the advertisement in question did not include the names of the goods, services or trademark, (ii) the compared goods and services were of the same type and quality, and satisfied the same demand and need, (iii) the advertisement complied with "fair competition" principles and did not mislead consumers. The repealed regulation did not allow advertisers to use or address a competitor implicitly or explicitly in their advertisements.
The Regulation was expected to permit the use of competitors' names, trademarks, logos and other distinguishing marks or expressions along with competitors' trade names and business names in comparative advertisements, provided, among other things, that such advertisements (i) were not deceptive and misleading, (ii) did not lead to unfair competition, (iii) were based on claims that were objective and provable, and (iv) related to an issue that was beneficial for consumers.
The foregoing changes drained all meaning from the notion of "comparative advertising" and entirely removed comparative advertisements from the Turkish jurisdiction. In other words, the Amendment Regulation brought back the absolute ban on comparative advertisements which use or refer to the trademarks or distinctive elements of one's competitors.
It may be said that the ban on comparative advertisements has its roots in the rules and regulations relating to unfair competition and trademark protection. All unfair commercial practices and commercial practices that violate the principle of "good faith" are prohibited under the Turkish Commercial Code. It should be noted that unfair competition is regulated under the Turkish Commercial Code in an extensive and open-ended manner. The prohibition against unfair competition also covers and applies to comparing a competitor's goods, work products, activities or prices by misrepresenting the facts, in a way to mislead consumers or defame a competitor through unfounded claims, or to benefit from a competitor's fame and reputation, in order to surpass that competitor in the relevant business.
Similarly, the provision allowing the use of competitors' trademarks, logos and distinctive designs or signs in advertisements could have been controversial or raised legal concerns in terms of trademark laws as well. Pursuant to the Law No. 6769 on Industrial Property, a trademark holder is entitled to request the cessation of the use of its registered trademark. In light of the fact that the new provision would have allowed the use of competitors' trademarks in comparative advertisements, it was likely that disputes arising from this provision would have been closely related to and touched on the rules concerning trademarks.
That being said, we observe that lifting the ban on comparative advertising activities in the Turkish jurisdiction could have been a significant step and development for enhancing the competition between businesses in Turkey in favor of consumers, since it may have allowed/enabled transparent comparisons between commercial products, which would have been beneficial for consumers. Such comparative advertisements could have even impacted consumers' consumption habits, preferences and choices. Turkey's comparative advertising adventure has come to a premature end, without even being practically tested in the real world.
This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in March 2019. A link to the full Legal Insight Quarterly may be found here.
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