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Comparative Advertising and Unfair Competition
The Turkish Commercial Code No. 6102
5
(“TCC”) regulates the
acts of unfair competition in Art. 55. Two paragraphs of this provision
which read: “
1 To discredit others, their goods, business products,
prices, activities and commercial businesses, through false, misleading
or unnecessarily injurious declarations,
” and “
5 To compare itself, its
goods, business products, activities or prices with others, their goods,
business products or prices in a false, misleading, injurious or imita-
tive manner, or to favor one party to the detriment of its competitors,
”
related to comparative advertising, specify the acts that would consti-
tute unfair competition.
In order for comparative advertising to be deemed lawful under the
TCC, it must not mislead or deceive the consumer, it must be truthful,
the goods and services subject to comparison must have the same qual-
ities and features, or meet the same needs, or be intended for the same
purpose and, thus, be equivalent or substitutable, the advertising must
not be unnecessarily denigrating or demeaning, it must not take unfair
advantage of the reputation of another person, and not give rise to con-
fusion
6
.
These conditions as foreseen in the TCC regarding unfair compe-
tition must be taken into consideration when assessing the LCP and
secondary legislation governing comparative advertising.
Comparative Advertising in Consumer Protection Legislation
LCP Provisions
Art. 16 fLCP and Art. 61 LCP regulate comparative advertising.
Both provisions enable comparative advertising regarding goods and
services that meet the same needs or are intended for the same purpose.
Therefore, these statutory provisions do not provide a difference gov-
erning the comparative advertising regime. The Justification of LPC
(as defined in the footnotes)
7
, by making a reference to the
acquis
communautaire
, states that comparative advertising must comply with
342
NEWSLETTER 2015
5
OG 14 Februaruy 2012, No. 27846.
6
Reha Poroy/Hamdi Yasaman
, Ticari İşletme Hukuku, 14. Bası, İstanbul 2012, p.333.
7
Justification, p. 78.