Pursuant to the Advertising Regulation, direct comparative advertising practice is considered unlawful as it is prohibited thereunder to mention the product name, trademark, logo, trade name, business name or other distinctive features of competitors in advertisements. It is only allowed indirect comparative advertisement without containing the trademark and distinctive features of competitors.
The Advertisement Board rendered a decision in August 2022, which was particularly important in terms of determining the scope of comparative advertising practice. The decision pertains to the advertisement published in the 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 contains the expressions of “It is highly similar to the scent of a world-famous fragrance!”, “Why would you pay … TL for a similar fragrance?” and the blurred images of perfume bottles of the compared world-famous brands are presented in the mentioned catalogues of the advertiser.
The Advertisement Board decided with respect to the images contained in the advertisements that include blurred images of perfume bottles owned by the world-famous fragrance brands constitutes a breach of the direct comparative advertising ban as per the Advertising Regulation since the bottles are recognizable by target consumers due to their distinctive colour and unique shape even though the images are blurred. The Board separately evaluated the expressions in the advertisement and determined that the advertisement compares the scent of the fragrances subject of the advertisements and 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 the competitor products are included in the advertisement in an identifiable manner. Such practice might result in circumventing the law which prohibits direct comparative advertising, and it might result in allowing advertisements that might damage fair competition.