Due to the fact that the number of competitors is increasing every day in commercial life, each firm or seller is struggling to increase its number of customers and demand for its products. In order to be able to say that this struggle is given in accordance with the law and within the framework of the rules of honesty, it should only be aimed at producing the better and offering it to the customer on more attractive terms. The law does not protect the collection of customers by methods such as cheating, fraud, misleading, vilifying and defaming others campaigns.
Unfair competition provisions regulating the relations between firms, sellers, customers and suppliers participating in the commercial life are provisions prohibiting deceptive, contrary to the rule of Decency and commercial practices. Although the behaviors that are contrary to these rules are considered as unfair competition cases individually in the Turkish Commercial Code, unfair competition cases are not limited to these cases.
There are different types of lawsuits that people who have suffered from their actions that constitute unfair competition can file to prevent, stop unfair competition or to compensate for the damages they have suffered due to unfair competition. In this bulletin, we share with you the issues of what lawsuits can be filed due to unfair competition, in which courts and how to file lawsuits, what claims can be made in these cases, and the answers to legal questions that are often asked to us about this issue.
1. What Behaviors and Actions Constitute Unfair Competition?
- Ads that violate the honesty rule, as well as sales methods and other illegal behaviors
- Detract
- Providing untrue or misleading information
- Exaggeration
- Advertisements based on scientific research results and witness statements
- Using prices in advertising
- Comparative advertising
- Causing confusion
- Comparison
- Aggressive sales methods
- Misleading with extra actions
- Using deceptive titles or professional names
- Not stating the trade title or the price of the product explicitly
- Misleading customers by hiding information about goods, business products or activities
- Failure to disclose the necessary information in advertisements for consumer loans
- Using contract formulas that contain incomplete or incorrect information in installment sale or consumer loan contracts
- Leading to a violation or termination of the contract
- Unauthorized use of other people’s business products
- Illegally disclosing production and business secrets and taking unfair advantage of them
- Non-compliance with the terms of work
- Using general transaction terms that are contrary to the honesty rule
The situations mentioned in the Article 55th Of the Turkish Commercial Code are given as examples of unfair competition situations and unfair competition can be caused by other behaviors.
The acts of infringement of the trademark right also constitute unfair competition and lawsuits can be filed in accordance with the unfair competition provisions of the Turkish Commercial Code. Unfair competition lawsuits are filed in practice on the grounds that brands are used by another company or person who is similar or the same enough to cause confusion.
“..the plaintiff’s phrase “Çaykur Filiz Çayı” is a registered trademark with TPMK, there are no design records belonging to the defendant, the defendant’s use of packaging in the form of ”Çayder Filiz Çayı” violates the plaintiff’s trademark right by creating ambiguity (causing confusion) and creates unfaircompetition..”[1]
“misrepresenting others or their goods, business products, prices, activities, or business affairs, misleading
or vilify with unnecessarily hurtful remarks”; cases in b of the same article and paragraph 1-a provision of “Taking measures that lead to confusion with someone else’s goods, business products, activities or work,” is considered one of the acts that constitutes unfair competition.
However, as a rule, cases, events and personal ideas can be explained within the framework of freedom of expression, so the principle is that facts and interpretations can always be explained. Negative statements or statements made about a person or his activities alone does not constitutes unfair competition A statement containing a disparagement can only be characterized as unfair competition if it’s incorrect or misleading or unnecessarily hurtful [2]”
2. What Facts Need to be Proved in Unfair Competition Cases?
- To be able to file unfair competition lawsuits;
- The perpetrator of unfair competition must present an act that is deceptive or contrary to the honesty rule. But interest does not necessarily have to be gained because of his behavior, which constitutes unfair competition. There is no need to prove that he benefits his own business. Likewise, the plaintiff does not have to prove that his professional reputation, customer environment and economic activities have been damaged due to unfair competition behavior. The presence of a danger of harm is sufficient.
- At the same time, the perpetrator of unfair competition doesn’t need to be defective because he did this behavior intentionally, willingly, or because of his sloppiness. However, it is essential that in cases of material and moral compensation that will be opened to compensate for the damage suffered due to unfair competition, the fault of the perpetrator and the harm suffered must be proved.
- There is no obligation to be a competing company in order to file a lawsuit related to unfair competition acts. In other words, it is not necessary to operate in the same sector or market. Customers, consumer organizations, professional and economic associations and public institutions can also file unfair competition cases. Because the honest competition relationship protected by unfair competition lawsuits is a multilateral relationship, and customers individually and the public in general are also harmed by unfair competition.
3. What Lawsuits Can Be Filed Against Unfair Competition Actions?
A person who complains about an act that constitutes unfair competition has an opportunity to file
- determination of unfair competition,
- prevention of unfair competition(Restraint),
- abolition of unfair competition(Revocation),
- pecuniary and non-pecuniary compensation cases,
- a criminal case.
Each of these cases serves different purposes. The claims that can be requested in each case are also different. It is also possible to request an injunction before or in conjunction with the filing of a lawsuit.
4. In Which Court Should Unfair Competition Lawsuits Be Filed?
Unfair competition cases are heard in the Commercial Courts of First Instance.
4.1. Unfair Competition Detection Case
Anyone who has the right to file a tort lawsuit has the right to determine whether the behavior or action is contrary to the code of integrity or is a tort that misleads customers and the public. The presence of a legal interest in filing this case is a sufficient condition for filing a lawsuit. It is also possible to show the result obtained in this case as evidence by filing other lawsuits related to the unfair competition act, the existence of which has been determined in the detection case that has been filed.
4.2. Prevention of Unfair Competition (Restraint) Case
If the behavior or action that led to unfair competition is still ongoing or there are serious possibilities that it will recur, this situation can be prevented by filing a lawsuit to prevent unfair competition. But if the fact of unfair competition has become a thing of the past, it no longer continues, or if there is no possibility of repeating it, a prohibition case can no longer be filed. The court will prohibit the defendant from engaging in unfair competition with the decision it will make in this case.
4.3. The Case for the Abolition of Unfair Competition
Unfair competition is a case that allows you to return to the pre-actual situation. It may be required to eliminate the material situation arising from the act of unfair competition and correct them if the unfair competition was carried out with incorrect or deceptive rhetoric and actions. Again, in order to eliminate the unfair competition situation, if deemed necessary, the destruction of vehicles and products that constitute unfair competition may also be requested. In short, in this case, all negative effects in the relevant sector or market can be eliminated and necessary measures can be taken to restore the old state.
It was also possible to deconstruct the claims in these cases in the same case together. For example;
“Detection of the infringement of the rights of the plaintiff arising from the trademark registration of the mark used by the defendant company on its product creates unfair competition, to prohibit, and revoke, the infringement is stopped, the product containing the infringing elements and the business and promotional documents are deleted, the infringing details are deleted from them, and if it is unavoidable to prevent the infringement to end the promotion of the plaintiff’s designs on the defendant’s internet address, to approve the decision for the summary to be announced once in one of the 3 newspapers with high circulation published in Turkey, at the expense of the defendant, following the finalization of the decision..”[3]
4.4. Filing of Pecuniary and Non-Pecuniary Compensation Lawsuits Due to Unfair Competition
In order to claim compensation from the counterparty for actions and actions that constitute unfair competition, it is necessary to prove that the perpetrator has committed these actions intentionally or due to negligence. At the same time, it is necessary to prove in the lawsuit that it has suffered losses due to unfair competition and the amount of this damage. Although the plaintiff proves the amount of the damage, the amount of compensation will be determined by the judge. In determining the amount of compensation, the judge takes into account the amount of damage suffered, the specific circumstances of the concrete incident and the degree of fault of the perpetrator.
It is also possible that the person whose professional reputation has been damaged due to unfair competition will file a lawsuit for non-pecuniary damages. As a result of this case, the judge may also decide on the payment of a certain amount of money or the announcement of the decision by means of a press release and condemnation of the act.
4.5. Opening of a Criminal Case Due to Unfair Competition
In cases where the act of unfair competition is also a crime, it is possible to file a criminal case against the perpetrator October addition to the above-mentioned civil cases.
- Those who intentionally commit one of the written unfair competition acts that we have listed above,
- Those who provide deliberately false or misleading information about their personal situation, products, business products, commercial activity, and business to prefer their own, and offers to those of their competitors,
- Those who deceive employees, their deputies, or other assistants to ensure that the employee or his clients get hold of production or trade secrets,
- Those who learn from employees or clients that their employees or employees or proxies have committed an unfair competition act that requires punishment while they are doing their job and do not prevent this act or do not correct untrue statements, a criminal case may be filed against them for unfair competition.
As a result of the criminal case, imprisonment up to 2 years or judicial fine are dominated.
4. 6. Request for Interim Injuction
It is also possible to request an interim injunction before the unfair competition lawsuit is filed or together with the lawsuits filed. In order to request an interim injunction, it is sufficient to approximately prove before the court that it will suffer irreparable or impossible damages on the one hand while the litigation process with unfair competition acts is ongoing.
We may request the interim injunction from the competent and competent court about the merits of the case before the lawsuit is filed. The injunction requested after the case is heard can only be requested from the court where the actual case is being heard.
It is also possible that the court may decide on the confiscation of the goods subject to unfair competition, which requires punishment, as an injunction by the customs authorities during import or export, by requesting an injunction in case the plaintiff’s rights are violated.
5. To Whom Should Unfair Competition Lawsuits Be Filed?
Unfair competition cases should be filed against the perpetrator who committed the act of unfair competition. However, if the persons who commit the act of unfair competition are employees or workers, the lawsuit can also be filed against the person who employs these people. It is also possible that both will be sued. In order for compensation cases to be filed against the employee, it is also necessary to prove the fault of the employee and employees.
“..signed between the parties in undertaking criminal defendant is arranged only in terms of the requirements of the worker, the employer, the plaintiff in terms of the meaning of terms in the absence of any provision in criminal undertaking, the defendant’s unilateral sanctions against the employer, the terms of this undertaking, because it contains built-in in accordance with the jurisprudence of the Supreme Court, it is not a legally protected nature, in summary, the fact that each employee enters a job at another company in the same sector after leaving work will not pose a danger of unfair competition, as well as the fact that a specific zone has not been determined regarding the prohibition of unfair competition in the content of the commitment, for this reason, the commitment is contrary to the principle of freedom of work of the Constitution, refusal of the case on the grounds that unfair competition’s existence cannot be proven ..”[4]
“When we look at the article of the contract on the prohibition of competition, the limitation for the worker is not to carry out any work that will create unfair competition for a period of 1 year in any company operating within the borders of Turkey in the production, sale, and marketing of agricultural machinery and similar issues. This regulation is contrary to the principle of freedom of work guaranteed by the Constitution of the Republic of Turkey and is invalid due to the fact that it is not possible for the parties to make any regulation that would violate this freedom with the provision of a contract that they will sign between them. In this case by the court, while the refusal of the case should be decided due to the invalidity of the contract clause on the prohibition of competition, the defendant with the acceptance of the case was not right to impose a criminal charter against labor, it required overturning it.”[5]
Unfair competition can be filed against if they have been processed through organizations that will become operational as a result of future technical developments with all kinds of press, publication, communication, and IT enterprises, cases of detection, prevention, and elimination of unfair competition can only be resolved if what is published in the press, the program; what is displayed on the screen, in the tool or similar media; what is published as audio or in any way the owners of the message and the persons who post the ad. However;
- If the matter published in the print media, program, content, image, audio, or message has been published without the knowledge of their owners or the advertiser or contrary to their approval,
- If it is avoided that the owner of the thing, program, image, sound, or message published in the print media or who is the advertiser is notified,
- If, for other reasons, it is not possible to reveal the thing, program, image, sound, message owner or advertiser published in the print media or file a lawsuit against them in a Turkish court for other reasons,
The cases mentioned above, editor-in-chief, editor-in-chief, program producer, the person who puts or puts the image, sound, message into the publication, communication and information tool, and the head of the announcement service if these cannot be displayed; it can be filed against owner of a business or organization.
In the event of a defect of one of the persons listed in this paragraph, a lawsuit may be filed regardless of the order.
6. Statute of Limitations in Unfair Competition Cases
The plaintiff must file his case within one year from the day he learns about the act of unfair competition and the right to sue, and in any case, within three years from the date of the birth of the right to sue. Otherwise, his request will not be accepted on the grounds that it has expired.
However, if unfair competition is an act that requires an actual punishment, the longer statute of limitations provided for in the criminal code will also be considered valid for civil cases.
Conclusion
Honest competition in commercial life is an important issue for both customers and operators. There are many lawsuits that people whose businesses, customer circles, and professional reputations have been damaged due to unfair competition can file on this issue. Knowing which courts can open unfair competition cases, for what period of time, and what can be requested in the case ensures that the plaintiff’s damages are compensated in the best way with an unfair competition case and that they continue their commercial life smoothly.
With its expert staff in the field of commercial law, Solmaz Law and Consulting Office works to find the best solutions to your legal questions and problems related to unfair competition cases. You can contact our team via the communication channels specified in the contact information section of our office.
Best regards.
References
AYHAN, Riza/OZDAMAR, Mehmet/ÇAĞLAR, Hayrettin, Commercial Business Law, Yetkin Publishing, 2014, p.300-325.
Supreme Court 11. Legal Department, 2020/1356 E. 2021/1114 K., 11.02.2021.
Supreme Court 11. Department of Law, 2020/904 E., 2020/5766 K., 09.12.2020.
Supreme Court 11. Legal Department 2019/3677 E. 2021/1990 K., 03.03.2021.
Supreme Court 11. Department of Law, 2019/2050 E. 2020/5916 K., 16.12.2020.
Supreme Court 11. Legal Department, 2019/3450 E. 2021/1073 K., 10.02.2021.
Article 56vd of the Turkish Commercial Code.
[1]Supreme Court 11. Legal Department, 2020/1356 E. 2021/1114 K., 11.02.2021.
[2]Supreme Court 11. Department of Law, 2020/904 E., 2020/5766 K., 09.12.2020.
[3] Supreme Court 11. Legal Department 2019/3677 E. 2021/1990 K., 03.03.2021.
[4]Supreme Court 11. Legal Department, 2019/3450 E. 2021/1073 K., 10.02.2021.
[5]Supreme Court 11. Department of Law, 2019/2050 E. 2020/5916 K., 16.12.2020.