It would not be unreasonable to suggest that most developments in commercial markets occur as a result of competition between participants and manufacturers of similar products. From an end-user’s perspective, it is always easier to recognize products and/or make comparisons between products on the basis of specific brands/trademarks.
However, for an ordinary customer/end-user, who often does not have the ability to try out and then pick and choose from a wide array of products, advertisements would be a primary source of information allowing them to compare (at least) the fundamental differences between the options on the table and make an educated decision.
In Turkey, companies are prohibited from referring in advertisements to actual brands that their own products are competing with. However, the rules about what information advertisements can legally provide in comparing products to those of competitors in the market are changing.
Legal Developments
On January 10, 2015, the Regulation on Commercial Advertisement and Unfair Commercial Practices entered into effect in Turkey, allowing enterprises to use their competitors’ commercial title and trademark in their own advertisement for comparative purposes. The effective date of the provisions regulating the principles of such competition was initially set for January 10, 2016, and then postponed to December 31, 2016. The basis for such postponement has not been specified.
Further, by virtue of a regulation published on January 4, 2017, the effective date of Article 8 was again postponed, this time to January 1, 2018, and certain amendments to the principles were introduced as well.
Principles
According to that January 4 regulation, the following principles will apply to comparative advertisements:
a) Enterprises may engage in comparative advertisement provided that:
- such advertisements are not deceptive and misleading;
- such advertisements do not lead to unfair competition;
- the goods and services that are compared satisfy the same needs or serve the same purpose;
- only issues that are relevant to the customer are made subject to comparison;
- the advertisements objectively compare one or more characteristics, including price, of the goods and services which are tangible, essential, justifiable, and typical;
- comparative claims are based on objective, measurable, or numeric data evidenced by scientific tests, reports, or documents;
- such advertisements do not disparage or discredit the competitors’ intellectual and industrial rights, commercial title, business name, other distinguishing marks, goods, services, practices, or other characteristics;
- the competitor’s goods and services are from the same geographical origin, to the extent the origin of any goods or services for which comparison is made is stated in the advertisement;
- such advertisements do not lead to confusion between the trademark, commercial title, business name, or any other distinguishing mark, goods, or services of the owner of the advertisement and its competitor; and
- such advertisements are not contrary to principles determined by the Advertisement Board.
b) Names, trademarks, logos, or other distinguishing figures or expressions and commercial titles and business names of the competitors may be included in advertisements, provided that the advertisement in question complies with the conditions set out in paragraph a). It is also possible to refer to the testimonies of persons and/or institutions with respect to such comparative analysis.
c) With respect to food advertisements, issues that fall under the scope of a health declaration under relevant legislation shall not be the subject of comparison.
Only the issues relating to nutritional characteristics may be used as an element of comparison for food advertisements. Comparative advertisements of food supplements are prohibited.
d) With respect to advertisements related to the sectors where price corrections and significant market power obligations are regulated by the relevant administrative authorities, a price comparison shall not be made.
Conclusion
As set out above, efforts to allow competitors to use each other’s brands, products, etc., for comparative purposes in advertisements have been made for the past couple of years in Turkey, and it is hoped that the resulting legislation will be effective no later than January 1, 2018, making it easier for end users to pick between competing products.
It is also clear that the applicable legislation makes a distinction between certain types of products, such as foods, healthcare products, and other regulated products in an attempt to minimize any adverse effect on both the market and the end users/customers due to subjective and unlawful comparisons made in advertisements.
