The Advertisement Board rendered an important decision regarding comparative advertising practice on August 9, 2022. The decision pertains to the advertisement published in the catalogue offered to consumers monthly by a globally-known cosmetics and fragrance company which compared two of its fragrances with the products of two world-famous fragrance brands.
The advertisement published in the catalogue of the advertiser regarding its products contains the expressions of “It is highly similar to the scent of a world famous fragrance!” “Why would you pay … TL to a similar fragrance?”. The price information redacted in this article is included in the actual advertisement material, catalogues, and the blurred images of perfume bottles of the compared world-famous brands are presented in the mentioned catalogs of the advertiser.
The Advertisement Board decided with respect to the images contained in the advertisements that such practice constitutes breach of the direct comparative advertising ban as per the Regulation on Commercial Advertisement and Unfair Commerce Practices (“Regulation”) ruling that “Comparative advertisements are allowed solely on the condition that they do not contain the trademark, logo, trade name, business name or other distinctive features of competitors.” It is held by the Advertisement Board that blurred images of perfume bottles owned by the world-famous fragrance brands, subject to comparison in the advertisement, are recognizable by target consumers due to distinctive color and unique shape of the bottles being recognizable even the images are blurred.
The Board separately evaluated the expressions and claims in the advertisement, held that advertisement compares the scent of the fragrances subject of the advertisements and those of the world-famous luxury fragrances underlining that the luxury brands are high-priced when compared to the brands of the advertiser company. It is evaluated that the expressions like “Why would you pay … to a similar fragrance” are disparaging and disgracing the competitor's products, such comparison result in unfair competition and the advertisement constitutes breach of the Regulation ruling that “Comparative advertising is allowed on the condition that they do not constitute unfair competition and do not disparage or disrepute the products, services, practices or other features of competitors.”
Lastly, the Board reasoned that the claim regarding the similarity of the compared fragrances remained unproven based on the insufficient evidence submitted by the advertiser. Hence the advertisement breached the provisions stating that “Comparative advertisements may be published solely on the condition that claims justified by objective, measurable and numerical data, are proved by scientific test, report or documents”.
Pursuant to the Regulation, direct comparative advertising practice is considered unlawful as it is prohibited thereunder to mention the product name, trademark, logo, trade name, business name or other distinctive features of competitors in advertisements. Indeed, under the Regulation, using the trademark or distinctive signs of competitors in advertisements are expressly stated among unlawful practices. Direct comparative advertisements containing the distinctive features of the rivals' products are not legally allowed under Turkish law. It is only allowed indirect comparative advertisement without containing the trademark and distinctive features of competitors.
In this respect, the Board's decision has significant importance in terms of determining the scope of direct comparative advertising practice. The Board reasoned that it is considered unlawful to present the images of competitor's products in a manner that is recognizable by the relevant consumer group due to their distinctive features like color and shape of perfume bottles even though the contained images of the competitor's products are not clear but blurred.
We are of the opinion that the decision is in conformity with the applicable legal provisions regulating comparative advertisement practice under Turkish law and is compliant with the earlier settled approach of the Advertisement Board. It might constitute unlawful comparative advertising when the distinctive features of the competitor products are included in the advertisement in an identifiable manner. Such practice might result in circumventing the law which prohibits direct comparative advertising, and it might result in allowing advertisements that might damage fair competition.
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