Comparative advertisements under Turkish Law

Nowadays, advertisements come up with the indispensable tools of commercial life. Companies use advertisements as a tool to sale their products and services, to increase and raise their current sales among competitors in the market where competition is high.In this respect, products and services put on the market are presented to appreciation of consumers. Producers aim at providing best presentation of products and services to consumers. On the other hand, consumers aim at receiving best information regarding products and services that they will purchase.Advertisements service at two fundamental purposes: Undertakings find a chance to increase their sales combines in the market through promoting their products and services. On the other hand, consumers can be able to reach information regarding products and services of whose advertisements are made and therefore, they can be able to make their choices among those products and services much more easily. In this context, advertisements aim at effecting purchase decision of consumers and drawing attention of consumers to products or services subject to the advertisement. The first stage of this affection period is drawing attention of consumer to the advertisement and the second stage is the message of the advertisement to be understood accurately by the consumer and the last stage is the product or service subject to the advertisement to be preferred by the consumer.Taking into consideration of the abovementioned goals, comparative advertisements come up with the most effective tools to reach such goals. In other words, advertisers find an opportunity to make a best representation of their products through introducing their products? best features compared to those of competing products. On the other hand, through comparative advertisements, consumers can be able to make a better choice by assessing negative and positive features of products presented to the market. However, a risk of misleading of consumers or reaching of unjustifiable interest of advertiser may occur by taking into account that the advertisement cannot be based on objective criteria, may be misleading, etc. At this point, the necessity of determining the limitations of comparative advertisements is beginning to arise because in the event that no limitations are determined, this may cause damage to the economical competition or consumers. However, in case of forbidden of comparative advertisements, positive effects that will reflect to competition and consumers would be prevented. Therefore, balance should be established compulsorily between these two opposite poles and this compulsory constitutes the main point of this work.Comparative advertisements can be made through highlighting the best features of the product or service or indicating expressly or tacitly that the product or service subject to the advertisement is as good as or better than the competing product or service. Thus, consumers can be able to reach much more information by comparing parallel products or services and the competition environment can be therefore established in favor of consumers.In other words, while undertakings are making their products? or services? advertisements, they can compare their service or products tacitly or expressly by establishing a connection with the other competitors? products or services. In such case, undertakings can be able to mention that their products or services are as qualified and good as or better than the products and services of their competitors. Besides, through comparative advertisements, right of obtaining information of consumers can be provided to them much more comprehensively. Thus, consumers can easily choose the products or services that they require.When we evaluate the legal legislations relating to comparative advertisements, we see that the legislations in Turkey allow advertisements only to be made tacitly on contrary to the regulations in Swiss and EU laws. According to provisions of the Regulation on Principles and Application Fundamentals Relating to Commercial Advertisements and Announcements, using the name and signs of competing products or services expressly in the advertisements is not allowed. In other words, direct comparison made through using the names or trademarks of competitors, competing products or services in advertisement are not allowed under Turkish law.In general, no discrimination of direct or indirect way regarding comparative advertisements is governed in the LPC. At this point, we believe that it is not appropriate to make such discrimination and to forbid direct comparative advertisements through the Regulation on Principles and Application Fundamentals Relating to Commercial Advertisements and Announcements taking into consideration that no discrimination is provided in the LPC. In other words, direct comparative advertisements which are not forbidden in the LPC, are forbidden in such Regulation. Therefore, such application is against to the norms hierarchy. In this context, the necessity of modification and improvement of legislations regarding comparative advertisements in line with the Swiss and EU laws is arising. With respect to this matter, although the Turkish Commercial Law Draft constitutes a positive and significant step, it is not solely sufficient in respect of completion of modification and improvement. Therefore, mainly the regulations with respect to the structuring of Advertisement Board and secondary regulations should be improved and developed to reach a modern line.In light of the foregoing, under Turkish law, the advertiser is not allowed to use its competitors? or their products? or services? names, trademarks, logos or any other item reminding them within its advertisements. As a consequence, since comparative advertisements are not able to be made explicitly, the misinformation of consumers regarding the products or services subject to the comparative advertisement appears. The main goal of the comparison is to put forth the negative and positive differences among the products or services compared into the consideration. Therefore, not to mention the products or services that are subject to the comparison causes the misinformation of the consumers. In other words, through tacit comparative advertisements the consumers are not able to understand clearly that the products or services subject to the advertisements is much better than which product or service. In this case, the consumer fill in the blanks of tacit comparative advertisements by his own assumptions, and these assumptions may inevitably give rise to wrong judgments.In this context, we believe that direct comparative advertisements are much more efficient in respect of the purposes of comparative advertisements. However, the problems that may occur because of direct comparison should not be ignored. For that reason, we believe the limits of direct comparison must be clearly determined. At first, the usage of the competitors? or its products? or services? names, trademarks or any other signs in the advertisements causes the risk of unfair competition.Therefore, it is important that the comparison is true, honest and based on objective facts. Otherwise, unlawful damages incurred on the competitors or on their products or services, as well as unlawful benefits from their reputation before the customers may occur. In order to prevent such risks, a good working and efficient control mechanism is required. At this point, the comparison should be made only among products and services that are at the same quality and kind, and the comparisons that are not within the limitation should be prevented. Otherwise, it may cause comparison of products and services which actually are not at a comparable quality and kind. In this case, the advertiser may unlawfully damage its competitors or their products or services, or benefit from their reputation before the customers.The delicate situation of comparative advertisements reveals the importance of the supervision of advertisements. In this respect, the self- supervision and administrative supervision mechanisms are substantial for preventing unfair competition. Especially, the efficiency of self-supervision mechanism may reduce to a large extent the risk of unfair competition. In Turkey, the self-supervision of the advertisements is performed by the ?Advertisement Self-Supervision Board ? ASB? established in 1994. The self-supervision activities principally aim to determine the advertising standards, to ensure the adaptation and application of such standards by the advertisement sector, to provide consultancy services to advertisers and advertising agencies, to supervise the enforcement of the advertising standards by advertisers and advertising agencies, to investigate and resolve the complaints made by consumers, competitors and/or other concerned persons, and to punish advertisers violating the advertising standards.On the other hand, the administrative supervision is required to be efficient. In Turkey the administrative supervision of advertisements is performed through two institutions. One of these institutions is the Radio and Television Supreme Council, and the other one is the Advertisement Board of the Ministry of Industry and Commerce.Radio and Television Supreme Council (?RTSC?) is an institution authorized to apply the necessary sanctions to advertisers that are not complying with the provision of Law on Radio and Television Institutions and their Broadcasts. Since the decisions of RTCS are not published or made available to public, review and thus analyses and evaluation of these decisions are not possible. In this respect, RTCS? decisions and practices are extremely classified and this classification is unacceptable in a state of law.When we evaluate the structure of the Advertisement Board, we believe that it will be appropriate to make some changes to establishment of such board. Firstly, it is being observed that the structure of the boards is insufficient in respect of analyses including legal discussions and requiring legal evaluations relating to comparative advertisements. In other words, necessary analyses cannot be executed precisely due to the limited number of jurists within the Advertisement Board. In this context, we believe that it will be appropriate to increase the number of jurist members within the board.Besides, legal grounds of decisions of the Advertisement Board are very short and insufficient. At this point, in some decisions, the legal grounds on which the Advertisement Board based for reaching the result and therefore, the efficiency of these decisions which should be taken into consideration by advertisers lose grounds. Clear and sufficient ground is very essential in order for rules and standards relating to advertisements to be comprehended precisely by advertisers.When we review decisions of the Advertisement Board, we gather that the reason why such advertisements are against the law is not reviewed and analyzed well-grounded. Although the legal grounds are set forth in the decisions very shortly, the legal details and basis of the decisions are not being taken in hand. In such case, the advertisers face with difficulties to adopt such decisions as precedent and cannot comprehend the approach and opinions of the Advertisement Board regarding the comparative advertisements. Therefore, such decisions cannot constitute a proper instance for the current practice. In fact, ruling decisions with clear legal grounds is very important since this will help advertisers to make their own self-supervision and to determine limitations that should be complied in the advertisements.In addition, most of the decisions of the Advertisement Board are ruled based on insufficient inspection and this application is not favor of advertisers. In other words, the wrong decisions ruled as a result of insufficient inspections may cause an unjustifiable punishment to be imposed on advertisers and more importantly may cause the limitations relating to comparative advertisements to be understood incorrectly by advertisers. In such case, since which comparative advertisements should be punished would not be gathered clearly and consistently, advertisers may begin to avoid making comparative advertisements. In other words, advertisers who are not able to know for which actions they might be imposed punishment will start not preferring making comparative advertisement inevitably. As a result of such case, consumers will lack positive effects of comparative advertisements.We believe that, as we mentioned above, these negative cases arise from the structure of the Advertisement Board. Decisions that require comprehensive and detailed legal review are taken without depending on such review due to the limited number of jurists within the Advertisement Board. Therefore, the possibility on effective and accurate analyses of Advertisement Board is being prevented.Furthermore, it is observed that the Advertisement Board has imposed on advertisers grave administrative monetary fines. In this respect, advertisers are imposed to grave administrative monetary fines as a result of an inadequate and insufficient investigation through a decision lacking proper legal grounds. This problem may cause the risk that advertisers avoid to make comparative advertisements. Due to the ambiguity of the limits and the gravity of the administrative monetary fines advertisers avoid making comparative advertisements, and therefore consumers as well as advertisers devoid of benefits and advantages of comparative advertisements. We believe that this issue negatively effects on the competition. As a result of this attitude of the Advertisement Board, investments and engagements of small and medium size enterprises in market are complicated and the free competition in the market is negatively effected.In light of the foregoing, we believe that, the structure of the Advertisement Board should be rearranged and the number of member jurists should be increased. With this rearrangements, decisions based on comprehensive legal grounds will be taken and therefore appropriate punishments will able to be imposed on advertisers through sufficient and effective analyses and inspections.