What Is Unfair Competition?

In short

Unfair competition is commercial conduct contrary to the rule of honesty. It is not an automatic copy of trademark infringement. Trademark infringement is in a separate article.

The advertisement, the diversion of the customer, and the claim of a secret are the face of the evidence.

The writing of the formation of a limited company stands apart.

The commercial court is looked at against the capacity and the centre.

Related articles: commercial law.

What is unfair competition?

Unfair competition means practices that, by conduct contrary to the rule of honesty in commercial life, mislead or harm rivals, customers, or the market. The Turkish Commercial Code accepts that economic competition is free. It counts as contrary to the law the use of this freedom by methods such as deception, denigration, obtaining a secret, or creating confusion. The concept is not only a "copy product". The text of an advertisement, the sales channel, the recruitment of an employee, a domain name, or the integrity of the packaging can also be discussed in the same frame.

This text is for general information. The features of the concrete event, the state of the evidence, and the current legislation change the result. A certain result of the action, or a promise of compensation, cannot be given.

Unfair competition is one of the basic subjects relating to the protection of competition within commercial law. The same act sometimes intersects with intellectual-property law. The intersection does not mean that the two fields are the same thing.

Whom does it concern?

• Merchants who are confused with the advertisement, the packaging, or the trade name of a rival enterprise
• Enterprises whose customer list or tender file leaked after an employee left
• Rivals and buyers who meet a misleading claim of a discount, of origin, or of quality
• Producers who want to protect a product appearance that is known in the market even if they have no registered trademark
• Sellers who meet an imitation over an online marketplace, social media, and a domain name

The national frame of the Turkish Commercial Code applies for the commercial enterprises in Ankara as well. The local density may affect the duration. It does not change the elements.

Typical appearances within the frame of the Turkish Commercial Code

The law sets a general measure of honesty, and then lists the examples often seen. The examples are not a limited number. Other acts that give rise to a similar effect can also be assessed.

Misleading advertising and statements

If a claim of price, of stock, of origin, of certification, or of performance is contrary to the truth, a dispute can arise both for the rival and for the buyer. Comparative advertising is not forbidden in every situation. A misleading or belittling frame raises the risk. A claim of "the cheapest", of "unique", or of an undocumented superiority is open to a discussion of unfair competition if it cannot be proved. The advertisement using the language of humour does not do away automatically with the risk of misleading the average addressee.

A trade secret, and the movement of an employee

A trade secret is information that has not become public, that carries an economic value, and that is kept with reasonable confidentiality measures. A customer portfolio, a cost formula, supplier conditions, or a campaign plan that has not yet been announced can enter this scope. The protection does not arise only by writing a confidentiality record. The authority of access, the password, the contract, and the actual measure are looked at together. The personal relationship of an employee who left the job, and the copying of the company's secret, are not the same thing. The concrete file and the document separate them.

Confusion, imitation, and harm to reputation

If the product's overall appearance, the arrangement of the shop, the domain, or the social-media name is close enough to create a confusion of source in the consumer, a claim of unfair competition may come onto the agenda. Accusing the rival in an unfounded way of poor quality, of fraud, or of conduct contrary to the law can also be a separate appearance. The line between criticism and denigration is read with the factual basis and the tone.

Its difference from trademark infringement

Trademark infringement rests on the exclusive right over the registered sign. The class, the similarity, and the likelihood of confusion are examined over the industrial-property legislation. Unfair competition does not have to be tied to a registration. An unregistered appearance can be tried to be protected with a long use and with recognition in the market. The proof is harder.

In the same event, two bases can be put forward together. For example, a label very similar to a registered trademark can give rise both to a claim of trademark encroachment and to a claim of unfair competition. Against this, a copy whose registration scope stays narrow, but that misleads with the whole of the packaging, can stand stronger as regards unfair competition. Melting the concepts in a single heading makes the court's supervision of the elements harder.

The process focused on the trademark is treated separately, as regards the determination of evidence, a provisional measure, and the scope of the registration, in the article what can be done in trademark infringement. This article does not take the place of that guide. It puts commercial honesty and the action under the Turkish Commercial Code at the centre.

How do the notice and the action process proceed?

In an unfair-competition file, scattered movement with haste weakens both the evidence and the negotiation. A typical preparation can be thought of as follows:

1. Fix the act and the channel: the advertisement image, the product, the invoice, the URL, the date, and the point of sale are recorded as a whole.
2. Separate the legal characterisation: is there a trademark registration, is it a trade secret, is it misleading advertising, is it confusion?
3. Make the harm and the continuing infringement concrete: the loss of sales, the customer complaint, the stock, and the price movement are noted.
4. Build the notice in a measured way: the act, the request, the period, and the basis are written. Exaggerated language of threat is avoided.
5. Assess the need for a provisional measure: if the infringement continues, waiting can give rise to a result that is hard to remedy. The measure is not automatic.
6. Separate the requests in the petition of the action: stopping, correction, compensation, and, if there is any, the collection of the material are separate items.
7. Plan the collection after the judgment: the route upon a judgment can intersect with the frame of how a commercial claim is collected.

A notice is not compulsory. In a continuing infringement, or in a risk of loss of evidence, a measure and an action directly can be discussed. The periods can run according to the date of learning and of the act. Because of the risk of loss of a right, it should not be waited from memory. The text of the current article is checked with the concrete calendar.

The order of the evidence

A single cropped photograph gives rise to a claim of montage. The front and back face of the packaging, the shelf image, the invoice, and a screen record with a time stamp stand more firmly together. In a digital advertisement, the URL, the account name, and the publication date should be kept in the same set. A witness can be complementary especially in business-to-business relations. If there is no written trace, it is not counted as enough on its own in every file.

Where the act is read from

The act of unfair competition is read from the record of the publication, of the packaging, and of the correspondence, and this act is not taken for a complaint to the Competition Board. The office address does not choose the competent authority. A new day and an article number are not written. A trademark encroachment and an action of honesty are not taken for the same petition.

• Thinking that no route is closed because there is no trademark registration
• Not writing the elements of unfair competition because there is a registration
• Sending a harsh notice without gathering the evidence
• Relying on the ground "everyone in the market does it this way"
• Mixing a trade secret with a price list open to the public
• Inflating the compensation with a round figure that has no proof
• Tying the periods to the date of the answer to the notice

The common point of these mistakes is putting commercial anger in front of the legal characterisation. Competition is free. The limit of the freedom is the rule of honesty. The limit is drawn with the concrete act and with the effect in the market.

The digital shop window, the marketplace, and the domain name

The online channel both speeds unfair competition and changes the form of documentation. The same product photograph, the heading pattern, or the seller's trade name can multiply in a short time on the marketplace. The platform's internal complaint form does not hold the place of an action under the Turkish Commercial Code. It can still be a practical intermediate step for the infringement to stop in fact and for the record to be copied before it is deleted. A badge of "official seller", of "authorised service", or of an undocumented discount can open a discussion of a misleading statement.

A domain name and a social-media user name can give rise to a confusion of source even if there is no registered trademark. The redirection, the integrity of the shop window, and the customer messages are read together. A single cropped screenshot produces a claim of montage. The product page, the seller panel, the order flow, and the date and hour information should be kept in the same set. A live broadcast or a story format is more prone to being deleted. For this reason, the record should not be delayed.

The responsibility of the marketplace operator is not the same as the seller's in every file. The facts of notification, of removal, and of uploading again are examined separately. The merchant should construct his own shop name and images in a way that will separate them from the rival. Otherwise it is possible to fall into the position of both defendant and claimant.

The intersection of compensation, a measure, and a commercial claim

The request for stopping is the first priority in most files. As long as the infringement continues, the harm accumulates. Compensation wants proof. A loss of sales, a melting of the price, or an unfair gain can stay as a round claim without an invoice, a stock, a campaign calendar, and market data. An expert helps the court on the similarity and on the calculation. The report is not a judgment on its own. The parties can object.

Compensation for unfair competition is a legal cause different from a claim on an invoice or on a cheque. Collection based on an invoice is closer to the line of notice and of enforcement in the article how a commercial claim is collected. An infringement of competition has as its subject first the act and the effect in the market. Both disputes can also stand between the same parties. The petitions and the lists of evidence should not be mixed.

A provisional measure serves to cut the continuation of the infringement until the trial ends. The court looks for an appearance of being right, harm that is hard to remedy, and, most often, a security. The measure is not given in every application. A late application can lead to the confusion in the market becoming settled. The deposit of a security is the financial cost of the measure. An exaggerated request can also raise the security.

The periods can be tied to the learning and to the date of the act. In a trade-secret file, the moment of learning can correspond to the e-mail or the memory record on which the copy was noticed. In advertising, the publication date and the day the rival saw it can diverge. The calendar note is as important as the evidence. An administrative application, such as the supervision of advertising, does not resolve automatically the stopping and the compensation in private law. An administrative sanction may not meet the rival's harm. The timing of the two routes is planned according to the file.

The national frame of the Turkish Commercial Code applies in the commercial actions in Ankara as well. The hearing calendar may change depending on the local workload. It does not change the elements and the burden of proof. An early characterisation provides that both the trademark route and the unfair-competition route are not spent in vain.

The Competition Board, or similar administrative competition law, is not always the same thing as the action for unfair competition in the Turkish Commercial Code. The abuse of a dominant position, or a prohibition of an agreement, can be tied to a separate public-law regime. A small-scale imitation of a rival runs in most files on the route of the Turkish Commercial Code and, if there is one, of industrial property. Mixing the concepts has the wrong petition written to the wrong authority. This article is not the handbook of an application to the competition authority. It tells the action of commercial honesty.

Questions often asked

Are unfair competition and trademark infringement the same thing?

No. Trademark infringement is a claim of an encroachment on the exclusive right the registered trademark provides, and it is read over the industrial-property legislation. Unfair competition has as its subject commercial practices contrary to the rule of honesty. A registration condition is not looked for in every file. An imitation of packaging, misleading advertising, or the use of a trade secret can open a discussion of unfair competition even if there is no trademark registration. The two routes can be put forward together in the same event. Their elements are still separate. Mixing the concepts in the petition weakens the request and the proof. For the detailed trademark route, the relevant article should be read. This article is general information. A characterisation is not made without the concrete event being examined.

Can an action for unfair competition be brought for an unregistered product appearance?

It can. The burden of proof is heavier than for a registered right. The claimant should make concrete that the recognition in the market, the danger of confusion, the imitation, or the misleading closeness violates the rule of honesty. A single similar colour, or a general habit of the sector, is not always seen as enough. The sales channel, the customer group, the integrity of the packaging, and the timeline are looked at together. The absence of registration does not make the action impossible. It only does away with the presumption of protection. The quality of the evidence is determinative for this reason. The certain result changes according to the market facts and the current judicial practice. A judgment is not built with a general list of similarities.

Is misleading advertising counted as unfair competition?

Misleading, exaggerated, or commercial communication that belittles rivals is often discussed among the examples of unfair competition in the Turkish Commercial Code. If a claim of price, of origin, of quality, or of a "comparison" is contrary to the truth, a dispute can arise both for the consumer and for the rival. The advertisement being in the language of a joke or of marketing does not close the legal assessment automatically. What has to be proved is the risk of misleading the average addressee, or of harming the rival's reputation. A correction announcement, a stopping, and claims for compensation take shape according to the concrete publication. The Advertising Board, or similar administrative processes, can run separately. This text does not contain a promise of an administrative sanction. The papers and the content of the publication are taken as the basis.

How is a trade secret protected?

A trade secret is information that is not open to the public, that carries an economic value, and that is kept with reasonable confidentiality measures. A customer list, a price formula, a production method, or a tender strategy can enter this scope. The protection does not arise only by saying "let it be confidential". An access restriction, a contract record, and an actual measure are looked for. A file an employee copied when leaving the job, a leak to a rival, or an unauthorised use can give rise to a claim of unfair competition. If there is a criminal dimension, it is examined separately. This article is not a criminal-law guide. For the proof, the digital trace, the e-mail, and the access record are important. The absence of the measure makes it harder for the secret to be counted as a trade secret. The concrete kind of information changes according to the file.

Is a notice compulsory for unfair competition?

A notice is not compulsory in every file by law. Against this, in many commercial disputes a notice serves to stop the infringement, to fix the evidence, and, in the later action, for the discussion of default or of bad faith. A harsh, evidenceless, or exaggerated notice can have the reverse effect. In the text, the act, the date, the channel, and the concrete request should be written. Granting a period opens a possibility of negotiation according to the situation. It should not be assumed that it stops the periods that cause a loss of a right. If there is an urgency of a provisional measure, waiting for the notice may not be correct in every event. The choice of route is made according to the size of the harm and the continuing infringement. This article is general information.

What can be requested in an action for unfair competition?

Within the frame of the Turkish Commercial Code, the typical requests are the determination of the act, its stopping, its prevention, the collection or the correction of the material contrary to the law, and material compensation and, in some situations, non-material compensation. In misleading advertising, a correction announcement may also come onto the agenda. The court uses its discretion over the concrete harm, the benefit obtained, and the duration of the infringement. An exaggerated figure can weaken the discussion of the expert and of credibility. A provisional measure is tied to conditions separate from the main action, and it is not given automatically. Enforcement upon a judgment after the decision can open the direction of the collection of the claim. The items of the request should be written clearly in the petition. The result changes according to the evidence of the file.

How does the period run in an action for unfair competition?

In actions for unfair competition, the periods can be tied to separate starting points, such as the date the act was learned and the date the act was committed. The learning and the act may not be on the same day. In a continuing infringement, the discussion differs. The periods can be of a kind that can lead to a loss of a right. A day count from memory should not be stuck onto every file. The text of the current article and the concrete calendar should be checked together. Sending a notice does not always stop the period. Waiting on the ground of gathering evidence is risky. An early legal assessment helps to clarify the calculation of the period. This text does not contain a promise of an exact period.

In which court is an action for unfair competition heard in Ankara?

The jurisdiction is determined, according to the character and the amount of the dispute, within the frame of the commercial court or of the competent civil court of first instance. The venue is determined by looking at rules such as the defendant's place of residence, the place where the commercial enterprise is, or the place where the tort was committed. For the enterprises in Ankara, the competent court is read together with the concrete address and the place where the act took place. The wrong court can lengthen the process with an objection to venue or to jurisdiction. If there is an intersection with intellectual property, the special rules of jurisdiction are checked separately. Rather than memorising a general court name, the papers and the register information should be taken as the basis. This article is general information.

Conclusion

The question of what unfair competition is is answered with the measure of honesty in the Turkish Commercial Code and with the typical appearances. Misleading advertising, a trade secret, confusion, and harm to reputation come first. Trademark infringement is a separate route. It can intersect. It does not carry the same elements.

The notice, the measure, and the action are planned together with the evidence and the period.

This article is for general information. Each dispute is assessed according to its own special conditions. The current legislation and the judicial practice matter.

For the frame, the pages commercial law, and for the intersecting registration route intellectual-property law, can be looked at.

The basis of the measure of honesty is in the text of the Turkish Commercial Code.