Introduction
In a time marked by rapid innovative and technological advancements, Turkish Intellectual Property Law continues to adapt to the dynamic nature of the global legal environment in 2024. As Moroğlu Arseven, we have taken the opportunity to reflect on the past year, consolidating our insights and expertise into a comprehensive collection of 11 articles that delve into the most significant developments shaping the field. These articles serve as a testament to our commitment to providing valuable, up-to-date information and fostering a deeper understanding of these critical changes. As we look ahead to 2025, we remain dedicated to monitoring, analyzing, and sharing the latest legal advancements to ensure our clients and readers stay updated and prepared for what lies ahead.
I. Advertising Board's Priority Practices in 2024
In 2024, the Advertising Board intensified its inspections with the aim of protecting consumer rights and made significant decisions, particularly concerning misleading advertisement, and surreptitious advertising, and unfair commercial practices. These decisions emphasize the necessity for commercial advertisements to comply with the principle of transparency, reaffirming the Advertising Board's commitment to safeguarding consumer interests.
As in 2023, one of the prominent focus areas of the Advertising Board in 2024 was "health claims." The Board highlighted that societal concerns arising from the pandemic and the acceleration of digitalization have created an information asymmetry to the detriment of consumers, particularly regarding dietary supplements and products marketed with health claims. It also acknowledged the potential influence of social media influencers in promoting such products, given the widespread use of social media platforms.
In this context, the Board intensified its reviews to raise consumer awareness regarding dietary supplement advertisements and to provide guidance to industry representatives. Sanctions were imposed against non-compliant advertisements, with a particular focus on administrative fines. For instance, during its February meeting alone, the Board reviewed 47 separate cases on this matter, resulting in approximately 10 million TRY in administrative fines.
Notably, the advertisement for a multivitamin tablet featuring a famous athlete was found to create the perception that the product enhances physical performance and concentration. The ad was deemed to promote or encourage excessive consumption of the product and was, therefore, classified as containing a health claim in violation of health claim regulations. Consequently, the Board imposed an administrative fine of 1,388,526 TRY and ordered the cessation of the advertisements.
The Advertising Board has also emphasized that discount rates on products or services must not mislead consumers. Price manipulations, such as artificially inflating prices only to subsequently lower them to create the appearance of a discount, are deemed deceptive practices and result in administrative fines as well as the suspension of the advertisements.
For instance, it was determined that advertisements claimed a television was being sold for a 90% discount for 2,999 TRY from an original price of 28,990 TRY, despite the product never having been sold at 28,990 TRY. This misrepresentation was found to be misleading and deceptive to consumers, violating the principles of fair competition. Consequently, the Board ruled for the suspension of the advertisements.
Another topic frequently reviewed by the Advertising Board in 2024, and likely to remain on the agenda for the foreseeable future, is surreptitious advertising. In particular, hidden advertisements conducted via social media platforms through influencers have drawn attention. Such advertisements, presented without disclosures such as "collaboration" or "advertisement," are deemed misleading and subject to sanctions.
In a notable decision, an influencer was found to have made promotional posts about their own brand, using highly laudatory language. Despite the brand being the influencer's, the absence of disclosures such as "advertisement" or "collaboration" led to the classification of the advertisement as surreptitious, and the advertisements were suspended as a result.
Another significant decision concerning surreptitious and hidden advertising pertains to alcoholic beverages. It was determined that in the advertisement, an alcoholic beverage, including the brand logo, was displayed without the beverage being consumed, and clothing matching the colors of the brand's logo had been worn in the shared content. This was deemed an indirect and surreptitious advertisement for an alcoholic product, violating the relevant regulations. As a result, the Board imposed an administrative fine of 347,128 TRY and ordered the suspension of the advertisements in question.
Another decision category addresses the misleading perception of discounts created through loyalty programs and long-term discount schemes, which have been deemed unfair commercial practices for misleading consumers. Such programs are prohibited from creating a discount perception when no actual discount is offered.
In this context, the Advertising Board has granted a landmark decision aimed at preventing practices that may mislead consumers. The decision stipulates that advertisements for goods or services offered through loyalty programs must not use terms such as "discount," "savings," "special discounts/offers for XY card/members," "prediscount price," or visuals like strikethrough prices or downward trend graphs to create a direct or indirect perception of discounts.
A notable case under this category involved an advertisement which included the statement: "...On bread products, the second of the same item is 50% off. The campaign is valid between ... dates for purchases made with x Card." It was determined that the advertisement gave the impression of a discount using the term "discount" for goods or services offered via a loyalty program. Consequently, the Board ruled that the advertisement must be halted.
A significant portion of the Advertising Board's decisions in 2024 falls under the category of "digital interface manipulations." Manipulative practices on e-commerce websites and mobile applications, such as pre-selected checkboxes or hidden fees, have been closely monitored. User interfaces that mislead consumers, provide insufficient information, or use deceptive designs have been classified as unfair commercial practices.
In one case reviewed on this matter, it was determined that a checkbox labeled "I Want to Become a Member" had been preselected without the consumer's explicit consent. Additionally, during the ticket purchasing process, the checkbox for "I have read and agree to the Terms of Use" did not actually provide access to the terms of use document. It was also found that consumers who became members faced unnecessary difficulties when trying to cancel their memberships, a process found to be far more cumbersome than signing up. Furthermore, the application failed to provide consumers with an option to accept or reject targeted advertising based on their interactions with the company's website, content, or services. It was concluded that the design and practices of the site negatively affected consumers' ability to make informed decisions. As a result, an administrative fine of 347,128 TRY was imposed, along with a penalty to suspend the commercial practices in question.
Another important area of decisions involves the presentation of misleading information regarding packaging size and product amount. Failing to clearly indicate changes in a product's content or weight on the packaging has been deemed deceptive advertising, resulting in penalties. For instance, in one case concerning this issue, a set of four soaps was found to be marketed in packaging labeled as 360 grams, while the actual weight was only 320 grams. This effectively increased the unit price of the products indirectly. Moreover, it was determined that the packaging did not include any visible indication or notification of the weight change, in violation of the relevant regulations. As a result, the Board imposed an administrative fine of 347,128 TRY and ordered the suspension of the misleading commercial practices.
The decisions made by the Advertising Board throughout 2024 aim to protect the consumers' right to access accurate information. Transparent and fair commercial practices have been subjected to rigorous oversight to prevent adverse impacts on consumers' economic behavior and ensure compliance with applicable regulations.
II. Recent Court Of Cassation Decision On The Analogous Application Of Copyright Transfer Agreements And Publishing Agreements
Copyright constitutes a set of moral and economic rights granted to the author of a work that reflects their intellectual effort, bears their characteristics, and is tangible and complete. These rights protect both the economic and personal interests of the author. Often, authors require capital and various resources to effectively utilize their work and transform it into an economically profitable product. In other words, utilizing a work economically often necessitates additional resources. For instance, it is not always feasible for a novelist to independently publish and distribute their own novel.
In the Turkish legal system, copyright is protected under the Law No. 5846 on Intellectual and Artistic Works ("LIAW"), which came into force on December 13, 1951. Under the LIAW, for an intellectual product to be recognized as a "work," it must bear the characteristics of its author, be materialized, and fall within one of the categories defined as literary, musical, fine arts, or cinematographic works. Intellectual products that do not meet these criteria cannot benefit from copyright protection.
The LIAW underwent amendments in 1983, 1995, 2001, and 2004, and efforts to draft a new version have been ongoing since 2010. Despite these efforts, legal regulations concerning technological advancements and the commercialization of works remain insufficient in certain areas. One particularly contentious issue is the prohibition under Article 48 of the LIAW, which states that transfer agreements cannot be made for works that have not yet been created, rendering such agreements null and void.
Formal Requirements and Protection Mechanisms in Copyright Transfer
Under the LIAW, the transfer of copyright is subject to strict formal requirements designed to protect the rights of authors. These provisions allow authors to voluntarily transfer the rights arising from their works while safeguarding their interests. For instance, rights cannot be assigned for works that have not yet been created, and all assigned rights and authorizations related to existing works must be explicitly listed individually in the agreement. These regulations serve to prevent the exploitation of the creator's intellectual labour while providing a legal framework for the dissemination of the work. However, with the commercialization of works, these formal requirements can sometimes be misused by authors themselves, leading to disputes and challenges in enforcement.
The established jurisprudence of the 11th Civil Chamber of the Court of Cassation provides that the assignment of rights cannot occur in cases where the formal requirements are invoked in bad faith. However, it has been accepted within the scope of the established jurisprudence that invoking formal requirements in bad faith is an abuse of rights. Moreover, it has been ruled that in such cases, the use of the work up until the date of the lawsuit or claim does not constitute copyright infringement. (Yargıtay 11.HD 04.06.2008T. 2007/5015 E. 2008/7374 K.)
Recent Court of Cassation Decision: Copyright and Publishing Agreement
The recent decision of the 11th Civil Chamber of the Court of Cassation dated May 27, 2024, addresses the claim that copyright assignment agreements between the plaintiff, an illustrator, and the defendant, an author, were executed before the works were created. In this case, the plaintiff and the defendant entered into six copyright assignment agreements between 2012 and 2018, concerning illustrations for the author's children's books. In these agreements, the plaintiff explicitly transferred all economic rights related to the illustrations for the respective children's books, specifying each right individually. The rights were assigned to the defendant without any territorial or temporal limitation and included the right to publish or withhold publication of the illustrations. In return, the illustrator received a one-time payment for each agreement. During the continuation of the contractual relationship between the parties, the books were reprinted multiple times.
However, in 2018, the defendant claimed that the agreements between the parties were executed before the works were created and did not meet the formal requirements, rendering them invalid. Based on these claims, the defendant filed a compensation lawsuit under Article 68 of the LIAW. In this lawsuit, the Local Court ruled that the delivery of the works fulfilled the contractual obligations, thereby resulting in discharge by performance. However, the court also determined that the compensation paid under the agreements applied only to the first print edition. Following the appeals and cassation applications by both parties, the 11th Civil Chamber of the Court of Cassation upheld the Local Court's conclusion that the delivery of the works fulfilled the contractual obligations and resulted in the discharge by performance. The Court also adopted the view that, although the defendant author was not a publisher, the provisions regarding publishing agreements as regulated in Article 491 and subsequent articles of the Turkish Code of Obligations No. 6098 ("TCO") should be applied by analogy. Furthermore, the Court agreed that, since the agreements did not specify the number of prints, the assignment fee paid under the agreements was limited to the first print edition.
Conclusion
The recent decision of the Court of Cassation serves as a significant guide regarding the legal framework of both copyright transfer and publishing agreements. However, the approach adopted in this decision raises questions about whether the fulfilment of obligations through delivery should be deemed sufficient to conclude that the transfer has occurred in cases where copyright transfer agreements are executed before the work is created, or whether this conclusion stems solely from the application of publishing agreement provisions by analogy. On the other hand, the decision introduces a new dimension to the ongoing discussions surrounding the interplay between the provisions of the LIAW and the TCO. It is anticipated that this decision will provide valuable insights for future practices aimed at balancing the protection of the authors' rights with the economic utilization of their works.
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