In this memorandum, together with the provisions of the Turkish Commercial Code numbered 6102, Law No. 6502 on the Protection of Consumers (the "Law"), the Commercial Advertising and Unfair Commercial Practices Regulation ("Regulation"), which entered into force after being published in the Official Gazette dated 10.01.2015 and numbered 29232 and later, in line with the amendments made in this Regulation, the procedures and principles regarding the “compliance of comparative advertisements under Turkish law” will be examined.
Comparative advertisements are defined as “advertising of competing goods or services that meet the same needs or are intended for the same purpose” in accordance with the Law. As stated in the Law, the procedures and principles to be followed regarding this type of advertisement have been comprehensively regulated by the Regulation issued later.
Provisions in the Turkish Commercial Code
Pursuant to Turkish Commercial Code Article 55/1 (a), it is regulated that if commercial advertisements have these characteristics listed below, these advertisements will cause unfair competition:
"To disparage others or their goods, work products, prices, activities or commercial affairs with false, misleading or unnecessarily hurtful statements,"
"Taking measures that cause confusion with someone else's property, work products, activities or jobs,"
“Misrepresenting himself/herself, his/her goods, work products, activities, prices, falsehood, misleading, unnecessarily misconduct or unnecessarily take advantage of his reputation; comparing others, goods, business products or prices, or put the third party forward in similar ways" [1]
Pursuant to this provision, comparative advertisements will not cause unfair competition if they do not make false statements about products or services belonging to others, do not harm these products or services, do not cause confusion, do not benefit from their reputation and create a result in their favor by using them; and in accordance with the Turkish Commercial Code, it will be possible to be regulated in accordance with the law and without any penal sanctions.
Provisions in the Law on the Protection of Consumers
Pursuant to Article 61/5 of the Law on the Protection of Consumers, it is possible to advertise and compare competing goods and services that meet the same needs or are intended for the same purpose.
Although the procedures and principles to be followed in comparative advertisements are regulated by the Regulation, comparative advertisements, like other advertisements, must adhere to the procedures and principles determined in this Law. In this context, as a general principle, advertisements should;
Be correct and honest, in accordance with the principles determined by the Advertising Board, general morality, public order, and personality rights,
Not deceive the consumer or exploit their lack of experience and knowledge, endanger the safety of life and property, encourage violent acts and commit crimes, harm public health, exploit patients, the elderly, children and the disabled,
Not be surreptitious (inclusion of the names, brands, logos or other distinctive shapes or expressions of the goods or services in the articles, news, broadcasts and programs for the purpose of advertising and presenting them in an introductory manner, without clearly indicating that they are advertising),
Not be misleading in terms of product / service qualifications [2]
Pursuant to this provision, comparative advertisements should primarily be arranged in accordance with the rules of the society, should not be deceiving and have negative consequences, should not be arranged in a way that could not be understood as advertisements, and should not be misleading.
Comparative advertisements that are in compliance with this Law should also be complied with the Regulation in order to make comparative advertisements appropriate to the Turkish Law.
Provisions in the Commercial Advertising and Unfair Commercial Practices Regulation
In this Regulation, which entered into force by being published in the Official Gazette dated 10.01.2015 and numbered 29232, the procedures and principles to be followed in the comparative advertisements permitted in accordance with Article 61/5 of the Law on the Protection of Consumers are comprehensively regulated.
The definition of "comparative advertising" in the Regulation was made as follows before the Regulation on the Amendment of the Commercial Advertising and Unfair Commercial Practices Regulation, which entered into force by being published in the Official Gazette dated 28.12.2018 and numbered 30639:
“Comparative advertising: It refers to advertisements where elements of competing goods or services are used directly or indirectly during the promotion of a good or service.” [3]
With the amendment, the definition of the concept of "comparative advertising" has been changed as follows:
“Comparative advertising: It refers to advertisements where the issues related to the promoted good or service are compared with the competing goods or services for the same purpose or to meet the same need.” [4]
With the change in definition, comparative advertisements have been limited to advertisements made for the same purpose and to competitors to meet the same need. In this sense, the scope of the restrictions on comparative advertisements was narrowed, preventing competitors who provide goods or services in different areas from claiming any rights based on comparative advertisements.
In accordance with Article 8 of this Regulation:
“ARTICLE 8 – (1) Comparative ads can only be done under the following conditions:
They should,
Not include Competitors' product name, brand, logo, trade name, business name or other distinctive elements,
Not be deceptive and misleading,
Not lead to unfair competition,
Compare goods or services that meet the same needs or have the same purpose,
Compare a subject that will benefit the consumer,
Objectively compare one or more substantial, verifiable, and typical characteristics of the goods or services being compared, including price,
Prove the objective, measurable claims based on numerical data with scientific tests, reports or documents,
Not denigrate or discredit competitors' goods, services, activities or other characteristics.
Include goods or services that are from the same geographical location in the comparison of the goods or services whose origin is specified,
Not cause confusion about the advertiser and its competitor's brand, trade name, business name or any other distinctive sign or goods or services,
Not contrary to the principles determined by the Advertisement Board” [5]
With this regulation, the qualities that comparative advertisements should have are limited to the conditions listed under Paragraph 1, and comparative advertisements that are organized in violation of these provisions may face criminal sanctions.
The provision in the second paragraph of the article that is repealed on 28.12.2018 was as follows:
“Comparative advertisements may include competitors' names, brands, logos or other distinctive shapes or expressions, as well as trade names or business names, provided that they comply with the provisions specified in the first paragraph of this article. The testimony of any person or institution cannot be included in direct comparative advertisements made in this way.” [6]
However, with the repeal of this provision and the addition to subparagraph (a) of paragraph 1, the right to include competitors' names, brands, logos or other distinctive shapes or expressions and trade names or business names in comparative advertisements is not permitted anymore. In this case, it is not legally possible to make comparative advertisements directly using the information of competitors.
“(3) In food advertisements, matters within the scope of health claim according to the relevant legislation cannot be compared. The use of the issues within the scope of the nutrition declaration as a comparison factor in advertisements is made according to the provisions of the relevant legislation. Comparative advertising of supplements cannot be made in any way.” [7]
Pursuant to this provision, a special regulation has been made regarding food advertisements, and it is forbidden to subject the matters within the scope of health declaration to be compared, the issues related to the nutritional claim have been directed to the provisions of the relevant legislation, and the comparative advertising of supplementary foods is completely prohibited.
“(4) Price comparison cannot be made in advertisements for the sectors whose price regulations and effective market power obligations are determined by the relevant administrative authorities.” [8]
With this provision, it is regulated that the prices cannot be subject to comparison in comparative advertisements to be made in the sectors where price regulations are made by the administrative authorities.
In addition, in accordance with the article 9/3 of this Regulation:
"The claims in comparative advertisements that are subject to comparison must in any case be proven by information and documents obtained from the relevant departments of universities or accredited or independent research, testing and evaluation institutions." [9]
In this context, it is stipulated to use the information and documents obtained from the relevant departments of universities or accredited or independent research, testing and evaluation institutions as a means of proof in disputes regarding comparative advertisements.
CONCLUSION
In order to make comparative advertisements duly, provided that these advertisements;
Comply with the general rules in the relevant provisions,
Does not include elements that will directly disclose competitors
They,
Should be for the benefit of consumers,
Should have comparison of one or more tangible, substantial, verifiable and typical characteristics of goods or services, including price,
Should have objective, measurable claims based on numerical data; proved by scientific tests, reports or documents.
With these regulations, it is mainly aimed to prevent the emergence of an unfair competition environment through comparative advertisements, and also to protect consumers from any material or moral damage by making wrong choices due to advertisements that do not meet the requirements of these regulations.
[1] Law No. 6102 Turkish Commercial Law (OG. 14.02.2011/27846)
[2] Law No. 6502 Law on the Protection of Consumers (OG. 28.11.2013/28835)
[3] Commercial Advertising and Unfair Commercial Practices Regulation (OG. 10.01.2015/29232)
[4] Regulation on the Amendment of the Commercial Advertising and Unfair Commercial Practices Regulation (OG. 28.12.2018/30639)
[5] Commercial Advertising and Unfair Commercial Practices Regulation, Art. 8/1
[6] Commercial Advertising and Unfair Commercial Practices Regulation, Art. 8/2
[7] Commercial Advertising and Unfair Commercial Practices Regulation, Art. 8/3
[8] Commercial Advertising and Unfair Commercial Practices Regulation, Art. 8/4
[9] Commercial Advertising and Unfair Commercial Practices Regulation, Art. 9/3