Turkey: Comparative advertising to be allowed

18-12-2015

Isik Ozdogan and Ezgi Baklaci

From January 10, 2016 comparative advertisements will be allowed in Turkey. Provided certain conditions are met, adverts will be allowed to include competitors’ titles, trademarks, logos or other distinguishing marks or phrases, as well as trade names and company names. It will be the first time in Turkey’s history that companies can publish and broadcast true comparative advertisements.

Article 16(5) of the Consumer Protection Law (No. 6502) states that “one can make comparative advertisement[s] by using [a] competitor’s goods and services that meet the same needs or same purposes”. Under the law, the Turkish Customs and Commerce Ministry prepared the Regulation on Commercial Advertisements and Unfair Commercial Practices, which was published on January 10, 2015. The relevant article, which will enter into force on January 10, 2016, introduces details for comparative advertising provisions. The regulation outlines detailed rules on unfair commercial practices that are defined in the consumer law and the Turkish Commercial Law.

The regulation expressly allows comparative advertising provided certain conditions are met. Accordingly, article 8 of the regulation states that comparative advertising:

Must not be deceptive and misleading;

Must not constitute unfair competition;

Must involve goods and services which have the same features and serve the same needs or demands;

Must compare aspects of goods and services which are useful or helpful to consumers;

"advertisers are expressly allowed to use a competitor’s name, trademark, logo or other distinctive sign or expression, as well as a competitor’s trade name."

Must objectively compare goods and services on at least one point which is substantive, essential and confirmable;

If a claim is based on objective, quantifiable and numerical data, they should be proved by scientific tests, reports or documents;

Must not corrupt or discredit competitors’ IP, trade name or other distinctive signs, goods, services, activities or other features;

For adverts related to goods or services from a specific origin, the goods or services subject to comparison should relate to the same geographical designation of origin; and

Should not create confusion if using an advertiser’s or competitor’s trademark, trade name or other distinctive sign, or goods and services.

Provided these conditions are met, advertisers are expressly allowed to use a competitor’s name, trademark, logo or other distinctive sign or expression, as well as a competitor’s trade name (article 8[2] of the regulation). However, comparative adverts on food and nutritional supplements are not permitted.

The regulation clearly prohibits disparaging content and defamation in adverts, including content directed at competitors’ trademarks and use of these trademarks in a mocking manner. Comparisons should avoid misleading consumers or taking advantage of competitors’ IP.

The regulation prohibits the copying or imitation of another party’s goods or services that are under trademark protection.

It is also in accordance with EU legislation on the topic of comparative adverts and opens a new era for IP owners and advertisers in Turkey. Until now, the Turkish Board of Advertisement adopted an approach which protected consumers from adverts. This change in law will trigger creativity in Turkish advertising, although advertisers should pay attention to avoid facing defamation claims.

Although the regulation came into force in January 2015, article 8(2), which allows use of trademarks in adverts, enters into force next year. Accordingly, 2016 will be a big year for trademark owners and advertising agencies in Turkey.

Isik Ozdogan is a partner at Moroglu Arseven. She can be contacted at: iozdogan@morogluarseven.com 

Ezgi Baklaci is counsel at Moroglu Arseven. She can be contacted at: ebaklaci@morogluarseven.com

Isik Ozdogan, Ezgi Baklaci, comparative advertisements, trademarks, logos, distinguishing marks, trademark protection, origin,

WIPR