Recent Development
In our client alert of October 2015, we announced that advertisers will be allowed to make direct references to a competitor’s trademark or name in comparative advertisements starting January 10, 2016. However, in the Regulation on the Amendment of the Regulation on Commercial Advertisements and Unfair Commercial Practices published on December 25, 2015, the government announced that it has postponed the effective date until December 31, 2016. From that point on, advertisers in Turkey will for the first time be permitted to suggest the superiority of their products and services using direct references to a competitor’s name, logo, title or other distinctive signs.
How is the current environment?
Comparative advertising is already permitted in Turkey under the Consumer Protection Law and Regulation on Commercial Advertisements and Unfair Commercial Practices (the “Regulation”), although direct references to competitors in comparative advertisements have until now been prohibited.
Article 61 of the Consumer Protection Law permits advertisers to engage in comparative advertising for similar goods and services that meet the same consumer need if the comparison is accurate and not misleading.
Meanwhile, certain provisions in the Turkish Commercial Code (“TCC”) deem misleading advertising to be unfair competition and prohibit advertisers from using deceptive information about goods and services. In short, any comparative advertisement that contains misleading information constitutes unfair competition.
How will the limits extend?
Article 8/2 of the Regulation allows advertisers to make direct references to their competitors’ names, brands, logos and other distinctive signs. The effective date of the Article was postponed to December 31, 2016.
Although Article 8/2 allows advertisers to use competitors’ names and trademarks starting December 31, the provision may still not provide complete freedom. For one, a comparative advertisement must not be misleading or deceptive. The goods and services to be compared must be of similar kinds and target the same type of consumer.
In other words, advertisers still need to be careful when referring to their competitors as to the type of the products they compare and continue to be bound by the requirements for comparative advertising generally.
Conclusion
Comparative advertising is a fairly new concept in Turkey and its scope is now expanding by enabling the use of competitor names and trademarks.
In many respects, this development favors competition and consumers. It also creates a legal environment that is modern and compatible with EU laws and international regulations. Yet the impact of the Regulation as well as establishing a consistent practice will certainly take time. In spite of this liberalization, the Advertisement Board’s strict interpretation of advertising rules should be taken into account before using competitor names and trademarks in advertisements. Allowing advertisers to refer to a competitor’s name and other distinctive signs is, in practice, likely to amount to trademark and unfair competition related concerns. Due to the lack of precedents and current enforcement practices, caution is advised when referring to competitors’ names, brands, logos and other distinctive signs.
For a further explanation on comparative advertising, please refer to our client alert of October 2015.
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Please do not hesitate to contact us if you have any questions regarding comparative advertising.
