Recent reports that a broader tolerance for comparative advertising would be allowed in Turkey were slightly misleading. However, Turkey is ultimately expected to follow the EU regime
the last quarter of 2013 the Turkish media broke the news that comparative advertising would be allowed, raising hopes that the global cola and car wars might be replayed – but this time in Turkey. In particular, the leading mobile phone service providers have great potential for this. However, the news was slightly misleading. The new Consumer Protection Law (6502) was published on November 28 2013. Article 61(5) states that “comparative advertising for competing goods or services that meet the same needs or are intended for the same purpose is allowed”. However, it is too early to comment, as the new law will not enter into force until May 28 2014 and the existing Consumer Protection Law (4077, amended on March 14 2013) states the same in Article 16. At present – and in the short term – in principle, comparative advertising is permitted in limited circumstances. A comparison cannot be made either directly or indirectly so as to associate or differentiate two competing brands due to strict regulations and practice. Legislation Comparative advertising is dealt with by certain laws which set out regulations on advertising rules and principles, and two statutory authorities which handle these issues before court proceedings are instigated: • the Advertising Board, which handles advertising issues ex officio or on written application in accordance with the Consumer Protection Law and the Regulation on the Standards and Application Principles of Commercial Advertising and Notices (March 14 2013) (the Commercial Advertising Regulation); and • the Radio and Television Supreme Council, which regulates radio and television broadcasts and examines advertisements in accordance with the principles set out in the Law on the Establishment and Broadcasting of Radio and Television (6112, March 3 2011), the European Convention on Transfrontier Television and the Regulation on the Principles and Procedures of Radio and Television Broadcasts (April 17 2003). This article does not consider the Trademark Law or rules, authorities and self-regulatory councils based on special laws and regulations concerning certain sectors (eg, medicines, tobacco and alcoholic beverages). Article 16 of the Consumer Law states as follows: • Commercial advertisements and notices should conform to the law, the general standards specified by the Advertising Board, general morality, public order and personal rights, and should be true and honest. • Advertisements and notices which are deceptive, misleading, exploitative of the consumer’s lack of knowledge, prejudicial to the safety of the consumer or his or her property, provocative of violence or crime, or exploitative of ill, aged or disabled people or children, and any subliminal advertising, are prohibited. • Advertisements comparing the goods or services offered by a competitor which meet the same needs or are intended for the same purpose are allowed. • It is incumbent on the advertiser to prove the material claims made in an advertisement or announcement. • Advertisers, advertising agencies and media companies must comply with Article 16. Article 11 of the Commercial Advertising Regulation identifies the limits and conditions for comparative advertising by giving the green light if: • the compared goods, services or trademarks are not disclosed; • the compared goods or services have the same quality and features or meet the same demands and needs; and • the advertisement respects the principles of fair competition and does not mislead consumers. Under Article 15, on taking unfair advantage of commercial reputation, in advertisements: • the name, emblem, logo or other corporate identity elements of another company or organisation may not be used in a misleading way; and • benefits may not be derived from the name of a person or another company/ organisation, or a reputation reserved under IP rights or obtained through an advertising campaign. With regard to unfair advertising practices and sale methods, Article 55(1) a of the Commercial Code (1602, enacted on July 1 2012) prohibits certain acts and comparative advertising, including: • “decrying competitors or their commercial business, products, activities or prices with false, misleading or unnecessarily offending declarations”; and • “comparing oneself, one’s business, products or prices with any of those of competitors’, with false, misleading, or unnecessarily offending declarations or unnecessarily opportunist declarations to take advantage of a competitor’s reputation, or put a third person in front In practice In a narrow sense, comparative advertising may be permitted regarding goods or services offered by a competitor which meet the same needs or are intended for the same purpose, unless an unfair business practice takes place such that the advertising: • is misleading; • unjustifiably discredits the competitor or its commercial business, products, activities or prices, directly or indirectly; or • causes a likelihood of confusion between the advertiser and the competitor. No reference to a competitor’s trademark or trade name in order to identify the compared goods or services is permitted. ‘Implicit advertising’, – which is defined in the law as “using a name, logo or other distinguishing devices or expressions in connection with goods or services and also trade names or company names in articles, news, publications and programs for the purpose of advertising and promoting where it is not explicitly indicated as advertising” is also prohibited. The courts have recently issued preliminary injunctions to stop comparative advertising on the grounds that the advertising was “misleading the consumer, and [included] false, misleading and pejorative connotations” which led to unfair competition. These cases involved a mobile phone operator and advertisements which: • compared the three-number operator code of another leading operator with ineffective football team formation tactics; and • implied that the high costs of a leading operator were similar to those of the fuel used by a four-wheel-drive vehicle. The Advertising Board is of major importance in the advertising sector and applies a strict interpretation of the advertising legislation, with penalties ranging from discontinuation, prohibition or rectification of an advertisement to pecuniary penalties of up to €20,000 per violation imposed on the advertiser, advertising agency or broadcaster. Comment ‘Comparative advertising’ – that is, any advertising which explicitly or implicitly identifies and compares a competitor or the goods or services offered by a competitor – is not allowed in Turkey. Further, any reference to comparative tests or reports by third parties is not permitted if other trademarks or competitors are included in the advertisement. Although the new Consumer Protection Law has been published, it is too early to comment on its implications – interested parties will have to wait for the implementing regulations to be published and to see whether there will be a relaxation in court practice and the strict rules of the Advertising Board, which are applied rigidly against implicit and comparative advertising, particularly when a competitor or its goods or services are indicated, even where no reference is made to a registered trademark. Most such cases constitute unfair practices under the Commercial Code. However, in the medium term, it is reasonable to expect Turkey to follow the EU regime, including updates to the EU Directive on Misleading and Comparative Advertising (2006/114/EC), in forthcoming legislation and further regulations.