On January 10, 2016, 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 trademark or
name.
Comparative advertising is already permitted in Turkey under the
Consumer Protection Law and the Regulation on Commercial
Advertisements and Unfair Commercial Practices but direct
references to competitors in comparative advertising has been
prohibited. On January 10, however, Article 8/2 of the regulation
will go into effect, eliminating the prohibition and permitting the
use of competitor names and trademarks.
To what extent is comparative advertising
legal?
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.
The unfair competition provisions of the Turkish Commercial Code
("TCC") deem misleading advertising to be unfair
competition and prohibit advertisers from using deceptive
information about goods and services. Any comparative advertising
containing misleading information constitutes unfair
competition.
For comparative advertising to be lawful, certain conditions must
be met:
- The comparative advertisement must not be misleading or deceptive;
- The comparative advertisement must not lead to unfair competition;
- The goods and services compared must be similar and meet the same consumer need;
- The compared features of the goods or services must be of interest to and for the benefit of the consumer;
- One or more material, major and verifiable qualities or quantities must be compared, which can also include price;
- The claim in a comparative advertisement must relate to an objective feature and be proven by scientific tests, reports or documents;
- The comparative advertisement must not infringe upon a competitor's intellectual property rights;
- If the origin of the goods and services is specified, the compared goods and services must be from the same geographical origin; and
- The comparative advertisement must not cause a likelihood of confusion.
Importantly, the advertiser bears the burden of proof as to the objectivity of a comparative claim. Any quantifiable claims must be proven based on scientific reports issued by a university or authorized institution accredited by the university or, in the case of tests done by private laboratories or centers owned by the advertiser, be verified by a Turkish university or authorized institution accredited by the university.
Use of competitor names and trademarks
The regulation introduced a new opportunity for advertisers: using a competitor's name or trademark in a comparative advertisement for the same type of goods and services. Under Article 8/2 of the regulation, advertisers may present trademarks, trade names, logos and other distinguishing signs of their competitors in a comparative advertisement, provided that the type of goods and services are the same and it does not contain any misleading or defamatory information and is in compliance with the prerequisites listed above. This Article 8/2, however, did not take effect immediately, but will enter into force as of January 10, 2016. Until then, advertisers are still prohibited from using competitor names and trademarks, explicitly or implicitly, in a comparative advertisement.
What should advertisers consider?
Although comparative advertising is allowed under certain circumstances, the practice and precedents are still developing. The Advertisement Board rigidly enforces advertising requirements. The lack of a single requirement could be deemed misleading and confusing for consumers and result in substantial monetary fines and the removal of the advertisement. Although Article 8/2 will allow advertisers to use competitor names and trademarks as of January 10, the provision may still not provide complete freedom as advertisers will need to be careful 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 new concept in Turkey and its scope will expand on January 10, enabling the use of competitor names and trademarks. 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. Due to the lack of precedents and current enforcement practices, it is advisable to be cautious when using comparative advertising.
* * * *
Please do not hesitate to contact us if you have any questions regarding comparative advertising.
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.