Unfair Competition

Competition rules are used by states as a tool to regulate the economy and increase competition in the markets. The main purpose of competition rules is: avoiding agreements, reconciliations or concerted actions that are likely to adversely affect competition between companies, prevent mergers, acquisitions or joint ventures that are likely to adversely affect competition, making decisions / actions likely to lead a company to an advantageous position or act alone in a particular market can be listed as prevent.

In Turkish law, the issue of competition is mainly regulated in the Law No. 4054 on the Protection of Competition. Competition rules are extremely important. Competition law rules should also be taken into consideration in the correct evaluation of the legal consequences of the activities of companies. In some cases, under the Turkish Commercial Code and the Code of Obligations, or general principles of law such as freedom of contract
A transaction or action that appears to be completely in accordance with the law may be against the competition law.

In competition law, it aims to prevent the agreements, actions, mergers and acquisitions, joint ventures and some unilateral decisions of the enterprises that are likely to have a negative impact on competition. Therefore, the purpose of the Law is to protect the markets by ensuring that free competition rules prevail.

 

Companies share information with their competitors, make price agreements, market and / or customer sharing agreements, production restriction agreements and conditional supply agreements (agreements that require the customer to buy another product or service to sell a product or service), establish joint ventures, re Controlling the selling price, granting exclusive authorized dealers or restricting the region, selecting the distributor and / or customer or ceasing to do business with them, some customers or distributors
Abusing their dominant position by refusing to sell or offering an exorbitant price, using patents, know-how and trademarks, and licensing, and mergers or acquisitions may violate competition law rules. Solving the problems that may arise in these and similar activities from the beginning will prevent high fines. In addition, companies that violate the competition rules, therefore third parties are exposed to
they are obliged to pay the damages. For such reasons, getting consultancy services from the right place will be of great benefit to companies.

 

 

In the Turkish Commercial Code, there are a number of provisions regarding unfair competition, that is, all kinds of abuse of economic competition in similar ways that are contrary to deceptive acts or goodwill rules. The provisions in question are intended to protect competitors, ie undertakings. Disputes regarding unfair competition are resolved through commercial courts.

 

 

The purpose of the provisions on unfair competition in the TCC is to provide honest and intact competition for the benefit of all participants (TCC Art. 54/1).
In order to speak about unfair competition, no fault condition is sought. It is a condition sought in order to claim defect compensation. In the 55th article of the TCC, the main unfair competition situations are listed as follows;

a) Advertisements and sales methods contrary to the integrity rule and other unlawful acts and especially;
1. Disparaging others or their goods, work products, prices, activities or commercial affairs with false, misleading or unnecessarily hurtful statements,
2. To make false or misleading statements about itself, its commercial enterprise, business signs, goods, business products, activities, prices, stocks, form of sales campaigns and business relations or to put the third party ahead of the competition by the same means,
3.Due not to receive a diploma or award, but to act as if he / she owns them, trying to evoke the impression that he / she has an exceptional talent or to use incorrect profession names and symbols suitable for this,
4. Taking measures that cause confusion with someone else’s goods, work products, activities or jobs,
5. Himself, their goods, work products, activities, prices are untrue, misleading, unnecessarily denigrating the competitor or unnecessarily exploiting its reputation; comparing others, goods, business products or prices, or bringing the third party forward in similar ways,
6. Offering certain selected goods, business products or activities for sale more than once below the supply price, especially emphasizing these offers in their advertisements and thus misleading customers about their own or competitors’ abilities; However, if the sales price is below the procurement price applied in the purchase of the same kind of goods, business products or activities in similar volumes, the existence of misleading is considered as presumption.
become; If the defendant proves the actual procurement price, this price becomes the basis for evaluation,
7. Misleading the customer about the true value of the presentation with additional actions,
8. Restricting the customer’s freedom of decision, especially with aggressive sales methods,
9. To hide the characteristics, quantity, purpose of use, benefits or dangers of the goods, work products or activities and thus mislead the customer,
10. Not to clearly state its title in public announcements regarding installment sales contracts or similar legal transactions, not to indicate the cash or the total sales price or the additional cost arising from the sale in installments in Turkish Lira and annual rates,
11. Not to clearly state its title in public announcements regarding consumer loans or to make clear statements regarding the net amounts, total expenses, effective annual interests of loans
12.The contract formulas that offer or enter into installment sales or consumer loan agreements within the framework of its operations and in this context contain incomplete or inaccurate information regarding the subject of the contract, price, payment terms, contract term, right of withdrawal or termination of the customer or the right to pay the remaining debt before maturity. use.
b) Directing to breach or terminate the contract; especially;

1. To direct customers to act in violation of the contracts they have made with others, so that they can make a contract with them personally,
2. Trying to gain benefits for themselves or others by providing or proposing benefits to third parties’ workers, their representatives and other assistants that they do not deserve and that may lead them to act contrary to their obligations in the performance of their work,
3. Directing workers, their representatives or other assistants to reveal or seize the production and business secrets of their employers or clients,
4. To force the buyer or the borrower who has made a sales in installments, cash sales or consumer loan agreement with him to withdraw from this agreement or the buyer who has made a cash sale agreement to terminate this agreement.
c) Unauthorized use of others’ business products; especially;
1. Unauthorized use of a business product such as an offer, account or plan entrusted to it,
2. To benefit from a business product such as a third party offer, account or plan, in case it is known that these have been deposited or provided to him without authorization,
3. To take over and benefit from someone else’s ready-to-market work products by means of technical reproduction, without his own appropriate contribution.
d) Unlawfully disclosing production and business secrets; In particular, he / she acts against the integrity of evaluating or informing others about the information obtained secretly and without permission or the business secrets of the producers.
e) Not complying with the terms of business; In particular, those who are imposed on competitors by law or contract, or who do not comply with the business conditions usual in a profession or environment, act contrary to honesty.
f) Using transaction terms that are against the integrity rule. Especially in a misleading way against the other party;
1. Significantly departing from the legal regulation to be applied directly or through interpretation, or
2. Those who use the pre-written general transaction conditions, which envisage the distribution of rights and obligations that are substantially contrary to the nature of the contract, are acting against honesty.

LEGISLATION

PART FOUR
Unfair competition
A) Generally
I – Purpose and principle
ARTICLE 54 – (1) The purpose of the provisions of this Section regarding unfair competition is to ensure fair and undistorted competition for the benefit of all participants.
(2) Deceitful or other acts of contradiction to the integrity rule and commercial practices that affect the relationship between competitors or between suppliers and customers are unfair and illegal.
II – Acts against the integrity rule, commercial practices
ARTICLE 55 – (1) The situations listed below are the main cases of unfair competition:
a) Advertisements and sales methods contrary to the integrity rule and other unlawful acts and especially;
1. Disparaging others or their goods, work products, prices, activities or commercial affairs with false, misleading or unnecessarily hurtful statements,
2. To make false or misleading statements about itself, its commercial enterprise, business signs, goods, business products, activities, prices, stocks, form of sales campaigns and business relations or to put the third party ahead of the competition by the same means,
3.Due not to receive a diploma or award, but to act as if he / she owns them, trying to evoke the impression that he / she has an exceptional talent or to use incorrect profession names and symbols suitable for this,
4. Taking measures that cause confusion with someone else’s goods, work products, activities or jobs,
5. Himself, their goods, work products, activities, prices are untrue, misleading, unnecessarily denigrating the competitor or unnecessarily exploiting its reputation; comparing others, goods, business products or prices, or bringing the third party forward in similar ways,
6. Offering certain selected goods, business products or activities for sale more than once below the supply price, especially emphasizing these offers in their advertisements and thus misleading customers about their own or competitors’ abilities; However, if the selling price is below the procurement price applied in the purchase of the same kind of goods, business products or activities in similar volumes, the existence of deception is considered as presumption; If the defendant proves the actual procurement price, this price becomes the basis for evaluation,
7. Misleading the customer about the true value of the presentation with additional actions,
8. Restricting the customer’s freedom of decision, especially with aggressive sales methods,
9. To hide the characteristics, quantity, purpose of use, benefits or dangers of the goods, work products or activities and thus mislead the customer,
10. Not to clearly state its title in public announcements regarding installment sales contracts or similar legal transactions, not to indicate the cash or the total sales price or the additional cost arising from the sale in installments in Turkish Lira and annual rates,
11. Not to clearly state its title in public announcements regarding consumer loans or to make clear statements regarding the net amounts, total expenses, effective annual interests of loans
12.The contract formulas that offer or enter into installment sales or consumer loan agreements within the framework of its operations and in this context contain incomplete or inaccurate information regarding the subject of the contract, price, payment terms, contract term, right of withdrawal or termination of the customer or the right to pay the remaining debt before maturity. use.
b) Directing to breach or terminate the contract; especially;

1. In order to be able to contract with customers personally, they have made them with others.
leading to act contrary to contracts,
2. Trying to gain benefits for themselves or others by providing or proposing benefits to third parties’ workers, their representatives and other assistants that they do not deserve and that may lead them to act contrary to their obligations in the performance of their work,
3. Directing workers, their representatives or other assistants to reveal or seize the production and business secrets of their employers or clients,
4. To force the buyer or the borrower who has made a sales in installments, cash sales or consumer loan agreements with him to withdraw from this agreement or the buyer who has made a cash sale agreement to terminate this agreement.
c) Unauthorized use of others’ business products; especially;
1. Unauthorized use of a business product such as an offer, account or plan entrusted to it,
2. To benefit from a business product such as a third party offer, account or plan, in case it is known that these have been deposited or provided to him without authorization,
3. To take over and benefit from someone else’s ready-to-market work products by means of technical reproduction, without his own appropriate contribution.
d) Unlawfully disclosing production and business secrets; In particular, he / she acts against the integrity of evaluating or informing others about the information obtained secretly and without permission or the business secrets of the producers.
e) Not complying with the terms of business; In particular, those who are imposed on competitors by law or contract, or who do not comply with the business conditions usual in a profession or environment, act contrary to honesty.
f) Using transaction terms that are against the integrity rule. Especially in a misleading way against the other party;
1. Significantly departing from the legal regulation to be applied directly or through interpretation, or
2. Those who use the pre-written general transaction conditions, which envisage the distribution of rights and obligations that are substantially contrary to the nature of the contract, are acting against honesty.
B) Legal liability
I – Various lawsuits
ARTICLE 56 – (1) A person whose customers, credit, professional reputation, commercial activities or other economic interests are harmed or who may face such a danger due to unfair competition;

a) Determining whether the act is wrong or not,
b) Prohibition of unfair competition,
c) Elimination of the material situation as a result of unfair competition, correction of these statements if unfair competition is made with false or misleading statements, and destruction of tools and goods that are effective in the processing of unfair competition, if it is inevitable to prevent infringement,
d) Compensation for damage and loss if there is a defect,
e) In the presence of the conditions stipulated in Article 58 of the Turkish Code of Obligations, it may request moral compensation. In favor of the plaintiff and in accordance with the provisions of subparagraph (d), the judge may also decide for the benefit of the benefit deemed possible to be obtained by the defendant as a result of unfair competition.
(2) Customers whose economic interests are harmed or who may face such a danger may also open the lawsuits in the first paragraph, but they cannot request the destruction of vehicles and goods.
(3) Chambers of commerce and industry, chambers of tradesmen, exchanges and other professional and economic associations authorized to protect the economic interests of their members according to their statutes and non-governmental organizations and public institutions that protect the economic interests of consumers according to their statutes are They can open the lawsuits written in subparagraph (c).
(4) The provision against a person in accordance with subparagraphs (b) and (c) of the first paragraph shall also be enforced on persons who have acquired goods subject to unfair competition directly or indirectly from him for commercial purposes.
II – Employer’s responsibility
ARTICLE 57 – (1) If the act of unfair competition is committed by employees or workers while they are performing their services or jobs, the lawsuits specified in sub-clauses (a), (b) and (c) of the first paragraph of Article 56 may also be brought against the employers.
(2) The provisions of the Turkish Code of Obligations shall apply to the cases written in sub-clauses (d) and (e) of the first paragraph of Article 56.
III – Responsibility of press, broadcast, communication and informatics organizations
ARTICLE 58 – (1) If unfair competition is committed through all kinds of press, broadcasting, communication and IT enterprises and organizations that will become operational as a result of future technical developments, the lawsuits written in sub-paragraphs (a), (b) and (c) of the first paragraph of Article 56 However, what was published in the press, the program; displayed on the screen, information tool or similar media;
It may be opened against the owners of the audio broadcast or transmitted in any way and the persons who posted the advertisement, however;
a) If the thing, program, content, image, sound or message published in the print media is published without the knowledge of their owners or advertiser or against the approval of the advertiser,
b) If it is avoided to declare the owner or advertiser of the thing, program, video, sound or message published in the print media,
c) If, for other reasons, it is not possible to uncover the owner of the broadcast, program, image, sound, message or advertiser or to file a lawsuit against them in a Turkish court,
The abovementioned cases include the editor, editor-in-chief, program producer, person who put or put the image, sound, message into the broadcast, communication and information tool, and the chief of the advertisement service; If these cannot be shown, it may be opened against the business or organization owner.
(2) Except for the cases stipulated in the first paragraph, in case of fault of one of the persons listed in the same paragraph
Lawsuits can be filed regardless of the order.
(3) The provisions of the Turkish Code of Obligations shall be applied in cases written in sub-clauses (d) and (e) of the first paragraph of Article 56.
(4) If he has not initiated the transmission of the unfair competition act, has not selected the recipient of the transmission or the content that constitutes the act or has not changed it to carry out the act, the lawsuits in the first paragraph of this article cannot be brought against the service provider; an injunction cannot be given. In cases where the adverse consequences of unfair competition action would be extensive or the damage would be substantial, the court
By listening to the service provider, it can also decide against the service provider for the termination or prevention of unfair competition or take other applicable measures that comply with the concrete case, including the temporary removal of the content.
IV – Declaration of the decision
ARTICLE 59 – (1) The court, upon the request of the party that wins the case, may decide to declare the verdict after the finalization of the judgment, with the expense from the party that has been found to be wrong. The court determines the form and scope of the announcement.
V – Timeout
ARTICLE 60 – (1) Lawsuits written in Article 56 expire by one year from the day that the party entitled to the case learns the birth of these rights, and in any case three years from the birth of them. However, the act of unfair competition also includes the penalty subject to a longer legal limitation period in accordance with the Turkish Penal Code No. 5237 dated 26/9/2004.
If it is an act that requires, this period will also be valid for civil cases.

VI – Precautionary measures
ARTICLE 61 – (1) Upon the request of the person entitled to file a lawsuit, the court shall preserve the current situation as it is, eliminate the material situation resulting from unfair competition as stipulated in subparagraphs (b) and (c) of the first paragraph of Article 56, prevent unfair competition and correction of false or misleading statements and other measures,
It may decide according to the provisions of the Code of Civil Procedure on interim injunction.
(2) In addition, the goods subject to unfair competition, which require penalty in case of infringement of the rights of the right owner, may be seized by the customs administrations as an interim injunction, upon the request of the right owner during import or export.
(3) The application regarding seizure is subject to the legislation on this issue.
(4) Within ten days of the notification of the order or seizure decision in the customs administrations, if a lawsuit is not filed in the relevant court or the court’s decision is not taken as an injunction, the administration’s decision to seize shall be terminated.
C) Criminal liability
I – Actions that require punishment
ARTICLE 62 – (1) a) Those who deliberately commit one of the unfair competition acts specified in Article 55,
b) Personal situation, products, business in order to prefer his / her demands and offers to those of his competitors
Those who deliberately provide false or misleading information about their products, commercial activities and businesses,
c) Employees, agents or other assistants, the employer or his clients in the production or
those who deceive to make sure they seize trade secrets,
d) Employers or clients, workers or employees or their representatives,
they learned that they committed an unfair competition act that required punishment when they saw it, and
Those who do not prevent or correct false statements,
If the act does not constitute another offense requiring a heavier penalty, they are sentenced to imprisonment up to two years or to a judicial fine, upon the complaint of one of those who have the right to file a civil action pursuant to Article 56, for the acts falling within the scope of each sub-clause.
II – Criminal liability of legal persons
ARTICLE 63 – (1) If an act of unfair competition is committed while legal persons are performing their business, the provision of Article 62 shall apply to the members or partners of the body acting or required to act on behalf of the legal person. In the event that unfair competition is committed within the framework of the activities of a legal person, security measures specific to the legal person may also be decided.

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