In the commercial life, deceptive or dishonest acts and commercial practices that affect the relations between rival merchants or between those who supply goods & services to the market and customers are considered as “unfair competition” in Turkish law and are considered unlawful in accordance with the Turkish Commercial Code (“TCC”).
Merchants presenting deceptive information to the public about their own goods, services and activities or the activities of their competitors in various ways, trying to compete with their competitors by vilifying them against the principle of goodwill, imitating the brands or products of their competitors, using the names or titles of the competitors, soliciting competitors’ employees or customers, recourse to ways such as transferring employees or disclosing information about their employers is considered unfair competition and prohibited by law.
Although the Turkish Commercial Code defines some circumstances as situations that constitute unfair competition just for the sake of example, it is possible for situations other than the acts mentioned in the article to constitute unfair competition. In commercial life, unfair competition situations often occur in the form of imitation of competitors’ brands and product images, forcing the employees of the competitor company to disclose product formulas or customer information, and derogation of competitors or their products in the market.
Among the cases of unfair competition, which are listed as examples in the law, the most common ones to be experienced in commercial life are as follows:
- Advertisements and sales methods against the principle of goodwill and other unlawful acts and especially;
- Disparaging others or their goods, work products, prices, activities or business with false, misleading or unnecessarily offensive statements,
- Making false or misleading statements about oneself, one’s commercial enterprise, business signs, goods, business products, activities, prices, business relations or enabling a third party to get ahead of the competition by the same means,
- Taking measures that cause confusion with someone else’s goods, work products, activities or business,
- Comparing oneself, one’s goods, work products, activities, prices; with others, their goods, work products or prices in an untrue, misleading manner, unnecessarily disparaging the opponent or unnecessarily taking advantage of the other party’s reputation;.
- Concealing the properties, quantity, purpose of use, benefits or dangers of goods, work products or activities and thus mislead the customer,
- Leading others to breach or terminate an Agreement; especially;
- Directing them to act in violation of the agreements they have made with others, so that they can make a contract with the customers themselves,
- Trying to profit themselves or enable others to do so by providing or offering benefits that they do not deserve to the employees, representatives and other assistants of third parties in order to lead them to act contrary to their obligations in the performance of their work,
- Directing employees, representatives or other auxiliary persons to disclose or seize the production and business secrets of their employers or clients,
- Unauthorized use of other people’s work products; especially;
- Making unauthorized use of a business product such as offers, accounts or plan entrusted to them,
- Benefiting from a work product such as an offer, account or plan belonging to third parties, even if it is necessary to know that these have been delivered or provided to oneself without authorization,
- Taking over and exploiting someone else’s ready-to-market work products by means of technical reproduction without proper contribution of one’s own.
- Unlawfully revealing production and business secrets; especially,
- Anyone who evaluates or informs others about information and the business secrets obtained secretly and without permission or otherwise unlawfully learned will be acting in breach of principle of goodwill.
- Failure to comply with business terms; especially failure to comply with business terms imposed on competitors by law or contract, or customary in a profession or environment.
- Using standard transaction terms contrary to the principle of goodwill against the other party. Especially in a misleading way to the detriment of the other party; significant departure from the a legal regulation to be applied directly or through interpretation, or
- It is considered to be against goodwill to use priorly drafted standard terms and conditions, which stipulate the distribution of rights and obligations that are significantly contrary to the nature of the contract.
It is clearly stated in the law that not only merchants, but also customers whose economic interests are damaged or endangered may file these lawsuits. In addition, the lawsuits listed in the first three places above can also be filed by chambers of commerce and industry, chambers of commerce, commodity exchanges and other professional and economic unions authorized to protect the economic interests of their members according to their statutes, as well as non-governmental organizations and public institutions that protect the economic interests of consumers according to their statutes.
Which Lawsuits Can Be Filed by Those Encountering Unfair Competition?
According to Article 56 of the TCC, a person whose customers, credit, professional reputation, commercial activities or other economic interests are damaged or may face such a danger due to unfair competition; can file the following lawsuits against the person who creates unfair competition:
– Declaratory lawsuit to determine whether the act is unfair or not,
– Lawsuit for prohibition of unfair competition,
– Lawsuit for elimination of the material situation that is the result of unfair competition, correction of these statements if unfair competition is made by way of false or misleading statements, and if it is inevitable for the prevention of infringement, destruction of tools and goods that are effective in carrying out unfair competition, (In such lawsuits, all the negative effects of the act leading to unfair competition in the market should be brought to the attention of the court. It should also be noted that, this lawsuit does not comprise of compensation claims.)
– If the person committing the unfair competition act is at fault, compensation lawsuit for the loss and damage suffered due to this reason,( It is not always easy to prove the damage suffered due to unfair competition. For this reason, in the case of pecuniary damages lawsuit, the judge may also decide the payment as compensation in favour of the Claimant , the profit that is deemed possible to be achieved by the defendant as a result of unfair competition.)
For this reason, in the case of pecuniary damages, the judge may also decide on the compensation for the benefit deemed possible by the defendant as a result of unfair competition as compensation in favour of the plaintiff.
– Non-pecuniary damage in the presence of the conditions stipulated in Article 58 of the TCO (i.e., if the personal rights of the plaintiff have been damaged)
What is the statute of limitations for filing these lawsuits?
The above-mentioned lawsuits regarding unfair competition should be filed within one year from the date of becoming aware of the act, and in any case within three years from the occurrence of the act. TCC article 60 also, referring to the Turkish Penal Code, states that if the act is also a crime regulated in the Penal Code and if a longer statute of limitations is foreseen for the crime, then it will be subject to this penal statute of limitations.
İrem Soyman Alevok, Attorney At Law