Comparatıve Advertısements In Turkısh Law

1. The Concept of Comparative Advertising

Pursuant to Article 61/1 of the Consumer Protection Law No. 6502 and Article 4/1-n of the Regulation on Commercial Advertising and Unfair Commercial Practices, commercial advertising is regulated as "Commercial advertising is an announcement in the nature of marketing communication made by advertisers through written, visual, audio and similar means in any medium in order to ensure the sale or rental of a good or service, to inform or persuade the target audience in connection with trade, business, craft or a profession."

The concept of comparative advertisement is defined in Article 4/1-ğ of the Regulation as "advertisements that compare features of the promoted goods or services with those of competing products or services that aim to meet the same need or serve the same purpose".

For an advertisement to be classified as comparative advertising, it must be linked to a competitor. This link shall be made directly by explicitly mentioning the competitor, or indirectly without explicitly mentioning the competitor. For example, an advertisement by brand X stating, "X shoes are more comfortable than Y shoes" is a direct comparison because it explicitly mentions the competitor. In contrast, the statement, "X shoes are more comfortable than other shoes" is an example of an indirect comparison.

2. Comparative Advertisements in Turkish Law

1. Basic Legislation

The legislation that should be used when addressing comparative advertisements is the Consumer Protection Law No. 6502 ("CPL"), the Regulation on Commercial Advertisements and Unfair Commercial Practices ('Regulation') issued based on this law, which entered into force after being published in the Official Gazette dated January 10, 2015 and numbered 29232, and the Turkish Commercial Code No. 6102 ("TCC").

2. Comparative Advertisements in terms of the Law on Consumer Protection

The CPL contains a brief provision on comparative advertising, stating that competing goods or services with the same intended use may be the subject of comparative advertising. Pursuant to Article 61/5 of the CPL, "comparative advertising of competing goods or services that meet the same needs or serve the same purpose may be carried out." Detailed regulations regarding the conditions under which direct or indirect comparisons may be made are set forth in Regulation Article 8; there is no explicit prohibition in this regard in the CPL. There are views in the doctrine that criticize the fact that this prohibition is made by regulation rather than by law.

Although it will be discussed in more detail below, Article 61/6 of the CPLC stipulates that "Advertisers are obliged to prove the accuracy of the claims in their commercial advertisements." This provision applies to all types of advertisements as well as comparative advertisements.

3. Comparative Advertisements in terms of the Regulation on Commercial Advertisements and Unfair Commercial Practices

Comparative advertisements and the conditions for such advertisements are regulated in detail in Article 8 of the Regulation. According to the relevant article, comparative advertisements may only be made if the following conditions are met.

The product name, trademark, logo, trade name, business name or other distinctive elements of competitors are not included, they are not deceptive and misleading, they do not lead to unfair competition, the goods or services compared meet the same needs or are intended for the same purpose, a comparison of a matter that will benefit the consumer, an objective comparison of one or more material, essential, verifiable and typical features of the goods or services compared, including the price, objective, measurable, numerical data-based claims; are proved by scientific tests, reports or documents, do not disparage or discredit the goods, services, activities or other characteristics of competitors, the goods or services are from the same geographical location in the comparison of goods or services whose origin is specified, the advertiser and its competitor's trademark, trade name, business name or other distinctive sign or goods or services do not cause confusion.

According to the above-mentioned article, the condition to be observed in particular is that the product name, trademark, logo, trade name, business name or other distinctive elements of competitors should not be included. Comparative advertising may be made if the conditions listed are present.

4. Burden of Proof in Legislation

According to Article 9 of the Regulation, the accuracy of claims made in advertisements must be proven. The third paragraph of the same article stipulates that claims made in comparative advertisements and subjects to comparison must be substantiated by information and documents obtained from the relevant departments of universities or accredited or independent research, testing, and evaluation institutions.

The two decisions included in the Press Release of the Advertising Board Meeting No. 357 dated 15.05.2025 are as follows

1. "In advertisements for the company's product called "... Laundry Detergent" broadcast on various television channels, "... is all you need. You can clean both your bathroom and your dishes. What's more, its new formula protects your whites twice as long. You can clean your entire home with one product. You can use ... throughout the entire house and spend less." These statements, along with the implication that cleaning various surfaces with only the advertised product is sufficient, create the perception that the advertised product is as effective as other surface cleaners available on the market. Additionally, the claim that "... its new formula protects your whites twice as long" The report submitted to prove these claims is insufficient to substantiate the claim in question. In the document submitted regarding the claim of "spending less" in the advertisements under review, the liter price of the product in question is compared with the liter prices of surface and floor cleaners, laundry whiteners, toilet cleaners, and kitchen and bathroom cleaners available on the market; however, it is assessed that the compared products do not meet the same needs and are not intended for the same purpose..." (Advertising Board File No: 2025/1744)With this decision, the Advertising Board has clearly stated that when making comparative advertisements, it is not sufficient to present only measurable criteria such as price, effectiveness, or scope of use; rather, the products being compared must also be part of comparable product groups that serve the same purpose. Additionally, claims such as "protects whites twice as long" and "you spend less" were deemed insufficiently proven, as the scientific data and reports on which they were based lacked the necessary objectivity and did not constitute valid evidence. This decision is significant in that it demonstrates that the Advertising Board not only scrutinizes the existence of the claimed data but also rigorously reviews the appropriateness of the product segment being compared and the scientific validity of the claims.
2. "As a result of the investigations conducted, it was found that the company's "...." brand detergent advertisements aired on various television channels included the phrase "Turkey's number one care detergent." However, considering that the product in the laundry detergent category is sold in different sizes in the market and that the report submitted to prove the claim is based on market share data by unit, the documents provided are insufficient to prove the claim of 'Turkey's number one care detergent' made in the advertisements. Furthermore, the advertisement film in question does not provide any information regarding which study or period the claim "Turkey's number one laundry detergent" is based on, thereby inadequately informing consumers..." (Advertising Board File No: 2025/1747) In this decision, the Board criticized not only the sufficiency of the evidence presented by the advertiser but also the lack of explanation regarding the period, market, or measurement criteria on which it was based. It was emphasized that general and bold statements such as "Turkey's number one laundry detergent" could constitute incomplete information and misleading advertising if they did not include clear sources and period information.

The Advertising Board decided to impose a suspension on the two advertisements in question.

5. Comparative Advertisements under the Turkish Commercial Code

Article 55, f. 1, b. (a)-5 of the TCC stipulates that "comparing itself, its goods, work products, activities, prices with others, their goods, work products or prices in a way that is untrue, misleading, unnecessarily disparaging its competitor or unnecessarily taking advantage of its reputation, or putting a third party ahead in similar ways" is considered as unfair competition.

In comparative advertising, objective and measured criticism of the competitor or the products or services offered by the competitor based on real facts, as a rule, does not constitute unnecessary disparagement in terms of Art. 55, f. 1, b. (a)-5 of the TCC. This is also the opinion of the Court of Cassation. "...Since commercials aim to inform and persuade the target audience about the features of the product by attracting the attention of the target audience, they may contain exaggeration to a certain extent... The perspective of the target customer audience is important in commercials, and the plaintiff ... ... is not targeted, it is in the nature of a general comparative advertisement, mentioning the superiority of its own service should not be understood as denigrating competitors, advertisements containing praise will be tolerated to a certain extent by the target consumer audience, the concrete advertisement does not create the perception that rival operators are of inferior quality compared to the defendant, considering that unfair competition conditions have not occurred, it was not deemed correct to establish a written judgment, and it was necessary to decide to overturn the judgment for this reason..."(Decision of the 11th Civil Chamber of the Supreme Court dated April 10, 2023 and 2021/8214 E. 2023/2186 K.)

6. Comparative Advertisements in the Decisions of the Court of Cassation and Advertising Board

Considering Article 8 of the Regulation and Article 55 of the TCC, another issue that should be mentioned is the differences between the decisions of the Advertising Board and the Court of Cassation. The Advertising Board is an administrative body operating under the Ministry of Trade and has the authority to impose administrative sanctions based on the CPL. The Board's decisions are binding on the relevant advertiser, media organization, or agency. Otherwise, administrative fines or sanctions such as advertising suspension are imposed.

As can be seen in the following example decision, the Court of Cassation points out that comparative advertising is not unlawful in cases where there is no unfair competition within the scope of Article 55 of the TCC and where the purpose of mentioning the competing brand is to inform consumers.

"...The court, according to the claim, defense, expert report and the entire file scope, it is clearly stated in the advertisements that the comparison is taken from ... Magazine, the ranking is preserved exactly, there is no evidence that the data in question is unrealistic, the reference made in the advertisement does not include a disparagement of the competitor's products and the sales services it offers, the damage claimed by the plaintiff in the financial evaluation cannot be proven, the advertisement published in the magazine taken as the basis for the advertisement is not deceptive and misleading to the consumer, the statement that the ranking in the advertisements is taken from ... Magazine's issue no. 2009/11 explains that the advertisement is based on the research conducted, if there is no unnecessary use of the advertisement in a way that will lead to unnecessary disparagement or misleading the public or the use of commercial reputation and if it is only intended to inform the consumer, it cannot be concluded that the advertisement constitutes unfair competition just because of the indication of the competitor's brand, the inclusion of the brands of the plaintiff company and other competitors in the advertisement is for the purpose of providing information about the test results, and does not constitute unnecessary disparagement, misleading the public and unfair exploitation of commercial reputation..." (Decision of the 11th Civil Chamber of the Court of Cassation dated February 17, 2014 and 2013/13174 E. 2014/2769 K.)

One of the decisions of the Advertising Board regarding the inclusion of competitors' product names, trademarks, logos, trade names, business names or other distinctive elements is as follows

"...Evaluation/Decision: As a result of the examinations made, the advertisements on the page titled "Our Pride" published on the website www. ... .net stated "Our Pride. We have been the fastest operator to connect to the online content portal ... from Turkey for the last fifteen months, including the first nine months of 2021. We are also the fastest operator to connect to the popular gaming platform ....", also on the same website https:// ..... According to the data taken from the website with the address net/ ... /, the visual indicating that the advertiser company is one of the two operators with the fastest connection to the .... infrastructure in Turkey together with the internet service provider named ... is included in a way to include the names of other service providers in the ranking, however, considering that comparative advertisements can only be made provided that the product name, trademark, logo, trade name, business name or other distinctive elements of competitors are not included, the visual in question constitutes a violation of the relevant legislation..."(Advertisement Board Decision dated February 8, 2022, File Number 2021/4871, Meeting No. 318)

There are inconsistent interpretations between the approach of the Board of Advertisement to the use of trademarks and trade names and the decisions of the Court of Cassation, and this situation has been criticized in the doctrine in terms of uniformity and predictability. While the Board of Advertisement is loyal and strict to the letter of the legislation, the Court of Cassation may not consider the measured and objective comparisons made for the purpose of informing the consumer according to the circumstances of the concrete case as unlawful.

3. Situation in Comparative Law

The main legislation for comparative advertising in the European Union is Directive 2006/114/EC ("Directive"). The purpose of the Directive is to protect against misleading advertising and unfair results and to determine the conditions under which comparative advertising is permitted. The conditions for comparative advertising are set out in Article 4 of the Directive. Some of these conditions are that the advertisement must not be misleading, must compare goods and services for the same need or purpose, must not disparage or defame the competitor's trademark, trade name or distinctive sign, and must include accurate and verifiable characteristics.

It should be emphasized that, unlike the practice in Turkey, trademarks, trade names or other distinctive signs of competitors may be used in cases where the conditions in the Directive are met.

In the US, the general approach to comparative advertising is more flexible than in Turkey and Europe. In the US, the name of a competing brand can be mentioned directly, and strong claims or criticisms can be included in comparisons; this is generally considered to fall within the scope of freedom of expression. In the US, freedom of expression in commercial advertising is balanced by the need to protect consumers from misleading advertising.

In the US, freedom of expression in commercial advertising stops at the border of consumer protection against deceptive advertising.

• Puffery (exaggeration): Statements that appear to be untrue, but are subjective and generalized, and are assumed not to be taken seriously by the consumer (e.g. "the best in the world") are not considered deceptive and are protected.
• Substantiation: If the advertisement makes a measurable, objective claim (e.g. "30% faster"), this claim must be substantiated. Otherwise, it is considered deceptive.

This distinction determines which types of statements the advertiser is free to make and which the advertiser bears the burden of proof.

4. Conclusion

Although comparative advertising is not completely prohibited by law in Turkey, it is rare in practice as it is under severe legal and administrative control. Advertisers need to comply strictly with unfair competition, consumer law and Advertising Board legislation. In particular, the following risks and challenges should be considered:

1. Unauthorized Use of Intellectual Property: Care should be taken to ensure that the unauthorized use of protected elements such as trademarks, logos, and technical data does not give rise to the risk of litigation and sanctions.
2. Risk of Unfair Competition: Misleading claims, or disparaging comparisons are contrary to the TCC and ethical advertising principles.
3. Product Comparability Problem: Differences in factors such as class, technical specifications and warranty may invalidate the comparison.
4. Data Timeliness Difficulty: The comparative data used in advertising must be up-to-date and scientifically sourced.
5. Price Fluctuations: Price comparisons may be misleading due to factors such as exchange rates, inflation and campaigns.
6. Sectoral Norms: Especially in sectors such as automotive, there is an implicit "no comparative advertising" Violation of this norm may damage commercial relations.

In summary, introducing a product or system that enables comparative advertising in Turkey carries significant legal risks. Such an application may expose its users to intellectual property infringement and/or unfair competition lawsuits.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.