Class 46 wishes to thank Turkish lawyer Muge Bulat, who is currently studying in London, for news of a decision of the Turkish Advertising Board (File no. 2009/549) of 11 November 2009 regarding infringement of Article 16 of the Consumer Protection Act No. 4077.  This Decision recorded that the advertisement was not compatible with (i) the Comminiqué on the Media Measurement Examination Results for Commercial Advertisements and Announcements and (ii) the Regulation on Implementation Principles for Commercial Advertisements and Announcements. Accordingly the Turkish Advertising Board imposed an administrative fine in addition to the suspension of the advertisement.

The advertisement in question was prepared by “Radio Fenomen” and published by a newspaper named Vatan on 8 June 2009. The advertisement, which contained a comparative graph which showing the listening ratings of the radio stations in Turkey, was submitted by the RIAK (Radio Observation and Examination Board). The advertisement also indicated that Radio Number 1, which claimed that it was the best, was ranked only fourth in the graph. Moreover, in the advertisement, a slogan announced that “There Is No Way to Become Number One by Playing on Words”.

Article 16 of the Consumer Protection Act states that commercial advertiments and publications should be truthful and honest in accordance with morality, legal order, and individuals’ rights. Also, Article 3 of the Comminiqué on the Media Measurement Examination Results for Commercial Advertisements and Announcements prohibits the mention of business names and other identities of the channels in comparison. In addition, according to Article 11 of the Regulation on Implementation Principles for Commercial Advertisements and Announcements, the compared products, services, or brand names should not be mentioned and, when making the comparison, certain elements that identify a competing brand cannot be used. Finally, if two products are compared in the advertisement, the image of the competing product should be distorted and its brand name should not be recognizable or distinguishable by consumers.

This note should be of particular interest to brand owners contemplating comparative advertising in Turkey and who might assume that, since the domestic regime for trade mark law so closely resembles that of the European Union, Turkish law on comparative advertising is equally similar.  It is not!