Comparative Advertising Under Commercial Advertising
The Consumer Protection Law numbered 6502 (hereinafter referred to as the "CPL") that came into force on 28 May 2014 provides a general framework governing comparative advertising in its article 61.
In this respect, the Regulation called Commercial Advertising and Unfair Commercial Practices (in Turkish, “Ticari Reklam ve Haksız Ticari Uygulamalar Yönetmeliği”, hereinafter referred to as the “Regulation“) based on CPL, entered into force on 10 January 2015. However, second paragraph of article 8 of the Regulation governing the use of trademarks, names, logos or other distinguishing marks or expressions and the commercial titles or company names of competitors in the comparative advertising shall come into force one year after the publication of the Regulation, which means on 10 January 2016.
Comparative advertising is an advertising category which is used by the advertiser to compare its product or service from one or more aspects with the products or services of its competitor(s) carrying on business in the same market that have a similar target group. The purpose of this comparison is to show the excellence or uniqueness of its product or service.
During the comparative advertising, the elements of competing products or services are used directly or indirectly. If such an advertisement refers or mentions the trademark or name of the competing product or service, an explicit or direct comparative advertising is in question; on the other hand, if no name or trademark is mentioned, but the competing product/ service may easily be ascertained by consumers, the advertisement is called implicit or indirect comparative advertising.
Comparison of the Former and the New Regulations
In the article 11 of the former Regulation called Principles and Code of Practice Regarding Commercial Advertisements and Announcements that had come into force on 14 June 2003; the comparative advertising was allowed, provided only that ;
a) The name of the products and the services or the trademarks subject to comparison is not mentioned;
b) The compared goods or services shall have the same qualities and features or shall satisfy the same requirements and needs;
c) The advertisements shall comply with fair competition principles and shall not deceive the consumers.
To which extent will comparative advertising be legally accepted?
As per the 1st paragraph of article 8 of the Regulation, comparative advertising shall only be allowed, provided that:
a) The advertising is not deceptive and misleading,
b) The advertising shall not cause unfair competition,
c) The compared products or services have the same qualities and satisfy the same requirements or needs,
d) The compared characteristics/ qualifications shall be the ones that will be for the benefit of the consumer,
e) One or more material, essential, verifiable and typical characteristics of the services or products shall be compared objectively,
f) The allegations depending on objective, measurable and quantitative data shall be proven by scientific tests, reports or documents,
g) The advertising shall not discredit or deprave the intellectual and industrial rights, commercial title, company name, other distinguishing rights, products, services, activities or other characteristics of the competitors,
h) When comparing the goods and services with a specific origin, the compared goods and services shall be from the same geographical area,
i) The advertiser shall refrain from any confusion that might be caused with the trademark, company name or other distinguishing marks /images of its competitor or with the goods or services of the latter.
Food supplements cannot be the subject of a comparative advertising.
Burden of proof
The party with the burden of proof regarding the objectivity of the comparison is the advertiser. The definitions, allegations or expressions with samples mentioned in the advertisements concerning sustainable data shall have to be proven by the reports obtained from the relevant university departments or from accredited testing and evaluation institutions or from independent research agencies.
In the light of the information summarized above, it is beyond any doubt that following the date of entry into force for article 8 of the Regulation, competition between the companies and trademarks with the same target group will become more violent and consequently, this will give rise to new types of legal disputes.