• Büşra Tilkioğlu

COMPARATIVE ADVERTISEMENTS

Updated: Oct 30, 2019

Turkish Law allows comparative advertisements and this is regulated in the Consumer Protection Law (“TKHK”) w.no.6502, which came into force on May 8, 2014. The definition and conditions of comparative advertisements are regulated in detail in the Regulation on Commercial Advertising and Unfair Commercial Practice (“the Regulation”) which was published in the Official Gazette dated January 10,2015 and numbered 29232.


According to the Regulation, “advertisements comparing the issues relating to the goods or services that are promoted and those relating to competitor goods or services for the same purpose or to meet the same needs” are accepted as comparative advertisements.


According to the conditions regulated in the Regulation, comparative advertisements may only be made if;


They do not include product name, trademark, logo, trade name, commercial name or other distinct marks of the competitors,

They do not deceive or mislead,

They do not result in unfair competition,

The goods and services that are subject to comparison have the same qualities and features, or meet the same needs, or are intended for the same purpose,

A feature that benefits the consumer is compared,

One or more material, major, verifiable and typical quality or qualities, which include the price, of the compared goods or services are compared in an objective manner,

Objective, quantifiable assertions based on numeric data are proven through scientific tests, reports or documents,

They do not denigrate or discredit the intellectual or industrial property, commercial name, trade name, or other distinct marks, goods, services, activities or other aspects of the competitors,

Goods and services whose origins are specified are compared with other goods and services from the same geographical location,

They do not result in confusion regarding the trademark, trade name, commercial name, any other distinct mark, or goods and services of the advertiser and the competitor.

They do not violate the principles determined by the Advertising Board.


In addition to the general rules set out in the Regulation, comparative advertisements must also comply with the provisions of unfair competition. According to article 55 of the Turkish Commercial Code numbered 6102, “discrediting competitors, their goods, business products, prices, activities and commercial businesses, through false, misleading or unnecessarily injurious declarations” and “comparing itself, its goods, business products, activities or prices with others, their goods, business products or prices in a false, misleading, injurious or imitative manner, or to favor one party to detriment of its competitors” would constitute unfair competition.


All these regulations regarding comparative advertisements are compliant with the European Union legislation. The regulations in our country are also compliant with the rules determined in the Directive on Misleading and Comparative Advertising numbered 2006/114/EC and Unfair Commercial Practices Directive numbered 2005/29/EC.


However, the legislation in our country and the EU legislation differ on a fundamental issue. According to Turkish law, it is prohibited to include competitors' product name, trademark, logo, trade name, commercial name or other distinct marks in the advertisements. In the first published version of the Regulation, it was regulated that the elements related to the goods and services of the competitors could be used directly in the advertisements. However, this regulation was postponed continuously and finally abolished at the end of 2018. Thus, the legislation has remained the same and a direct comparative advertisement with competitors is prohibited in our country now.


However, within certain limits, the use of competitors' trademarks and products in advertising provide the making of creative advertisements and thus bring vitality to the advertising sector. Because the advertisement wars among many companies around the world are very remarkable in the eye of the consumers. For example, competitions made with creative advertisements between Pepsi-Coca Cola, Audi-BMW, ​​Burger King-McDonalds are conspicuous advertisements for consumers.


In contrast to the practices around the world, in our country, comparative advertisements are made with expressions such as "the best”, “the cheapest”, “faster”, ”more quality" without mentioning any element directly about the competitor. These expressions used in advertising must be accurate, provable, and comply with other conditions set forth in the Regulation.


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