Conformity of Comparative Advertisements to the Advertising Law

Direct comparative advertising is considered unlawful under the Advertising Regulation as it is prohibited thereunder to mention the product name, trademark, logo, trade name, business name or other distinctive features of competitors in advertisements. Only indirect comparative advertisement not containing the trademark and distinctive features of competitors is allowed.

The Advertisement Board rendered a decision in August 2022, which was particularly relevant to the scope of comparative advertising practice. The decision pertains to an advertisement published in a catalogue offered to consumers monthly by a globally-known cosmetics and fragrance company which compared two of its fragrances with the products of two world-famous fragrance brands. The advertisement published in the catalogue of the advertiser regarding its products contained the expressions “It is highly similar to the scent of a world-famous fragrance!” and “Why would you pay … TL for a similar fragrance?” alongside blurred images of perfume bottles from the compared world-famous brands. 

The Advertisement Board decided with respect to the images contained in the advertisements that inclusion of blurred images of perfume bottles owned by the world-famous fragrance brands constituted a breach of the direct comparative advertising ban as per the Advertising Regulation since the bottles were recognizable to target consumers due to their distinctive colour and unique shape despite the blurring. The Board separately evaluated the expressions in the advertisement and determined that the advertisement scent of the advertised scents to those of the world-famous luxury fragrances underlining that the luxury brands are high-priced when compared to the brands of the advertiser company. The Board held that this comparison causes unfair competition by disparaging the competitors’ products. 

We are of the opinion that the decision is in conformity with the rationale of legal provisions regulating comparative advertisement practice under Turkish law. It might constitute unlawful comparative advertising when the distinctive features of a competitor’s products are included in the advertisement in an identifiable manner. Allowing such a practice would run contrary to the law prohibiting direct comparative advertising, and it could result in publication of advertisements that could damage fair competition.

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