Unfair Competition

*Galatasaray Sports Club Decision on the Principle that Unauthorized Use of Colours is an Example of Unfair Competition

In practice the most common example of unfair competition is to benefit from the well-known status of somebody else by creating confusion, who acquired this status by his own efforts & expenses. In order to determine the presence of confusion it should be evaluated whether normal and medium level buyers would be deceived or not. On the other hand in order to recognize the existence of unfair completion, the likelihood of confusion is deemed adequate.

There is no provision that prevents the use of colours alone. The consequence would not differ, even if these colours are representing a sports club. Nevertheless, the conditions of unfair competition may still occur, if a product or a service also uses expressions such as “fan, football, sports club, champion” that would remind of or associated with and/or make an impression of that particular sports club, besides using the colours. Furthermore if it is understood that the composition consist of the colours & goods or services may cause confusion or a likelihood of confusion the fans of the sports club, then it should be admitted that there is unfair competition.

Assembly of Civil Chamber of Supreme Court, 07.07.2010 Case No.2010/11-396, Decision No.2010/371

*Ersey Makine (Machine) Decision on Unregistered Inventions

The disputed invention is not registered on behalf of the plaintiff in Turkey. However the judgement of the expert court stating that the inventions that are registered in US will not enjoy patent protection in Turkey on grounds of territoriality principle is not accurate.

According to the art.1 of Patent Decree Law, the aim of the regulation is to promote inventions and protect them by issuing patent and utility model documents in order to provide the circumstances to apply the inventions in industry and to achieve technical, economical and social development. This article encompasses the principles, rules and conditions of protection of patents and/or utility models. However there is no provision in the Patent Decree Law, nr.551 stating that any invention, which has not been registered in Turkey, would not enjoy protection in Turkey. Therefore the inventions, not registered in Turkey shall be subjected to unfair competition regulations.

11th Civil Chamber of Supreme Court, 04.03.2008 Case No.2006/11131, Decision No.2008/2607

*Kokusuz Otogaz (Odourless Auto gas) Decision on Unfair Competition on grounds of False or Misleading Information

It is compulsory to add an odour to all the auto gas products according to the related legislation. Since the defendant claims that the auto gas he was selling is appropriate to related legislation, then there must be an odour added to the product.

In the advertisement text of the product, there is no expression indicating that there is an odour, appropriate to the Turkish Standards Institute principles or there is no other odour than the ones stated in the TSI principles. On the contrary, it is understood through advertisements that defendant’s product is odourless. According to the art.57/3 of Turkish Commercial Code the act of “giving wrong or deceitful information regarding one’s own situation, goods and the products of one’s work, one’s commercial activity or commercial affairs of acting in the same manner regarding third persons and putting them in a situation above their competitors” is against bona fides principle. Consequently the expressions used by the defendant on the advertisements cause unfair competition.

Assembly of Civil Chamber of Supreme Court, 7.11.2007 Case No.2007/11-839, Decision No.2007/825

*Meksis Decision on Unregistered Industrial Designs

The disputed modular storage systems have put on the market in abroad years ago and they are not registered as industrial design in Turkey on behalf of anyone. Thus, in theory it is legitimate to exploit an unregistered design and accordingly the legal disputes regarding products, of which these designs are being used, should be subjected to general provisions. Therefore, in the concrete case, the above mentioned principle and art.56 and art.57/5 of Turkish Commercial Code shall be assets & applied together.

In the case where a design, which is publicly available abroad and after a while has started to be utilized in Turkey, and if the first person to use this design in Turkey has made big investments financially or in any other way and third party possess the intention to use the same design just to benefit from this well-known character of the design, then it should be admitted that conditions of unfair competition are met.

11th Civil Chamber of Supreme Court, 21.03.2008 Case No.2008/1816, Decision No.2008/3687

*Hülya Avşar Decision on Photos

The disputed photos are not considered to be a work in terms of copyright. Therefore it is not possible to apply art.68 of Turkish Copyright Code. The defendant’s magazine, namely Hafta Sonu, has published the photos of plaintiff Hülya Avşar, which were actually shot for her own magazine. There were no prior authorization or no licence fee was paid. If the photos were published legally than the licence fee that would be demanded by the plaintiff would be 6.900,00 Turkish Lira, since it is natural to apply an interest for the exploitation. Therefore it was decided that the amount of the damages that plaintiff may request is determined to be 6.900,00 Turkish Lira.

11th Civil Chamber of Supreme Court, 01.02.2010 Case No.2008/10004, Decision No.2010/1042

*Modelsa Decision Regarding the Use of Industrial Right Registered in Bad faith, Constituting the Act of Unfair Competition

Taking into consideration that the defendant is a prudent merchant, it should be admitted that he has adequate knowledge of the products previously put on market, where he is an actor in the same sector. Nevertheless, the defendant has registered the product as it was his own design in 1997, whereas the design was being used in the sector widespread since 1991.

It is a main principle in law that everybody has to act in good faith in enjoying their rights and performing their obligations. Rule of law does not guard an explicit act of bad faith in exploitation of rights. Furthermore there is no doubt that that does not show expected prudence, shall not claim that he was acting in good faith.

Within this context, the industrial design registration that is lack of novelty and individual character which was registered by taking advantage of the formal examination registration system used in Turkey rendered invalid, since it was found by the court that the design was not new and did not have individual character and thus out of the scope of protection with respect to registration of industrial designs. Therefore all rights conferred from this registration are deemed as they have never been born at all according to the art.45/1 of Industrial Design Decree Law, nr.554. Consequently, the plaintiff’s damage occurred from these illegitimate and existent right claims must be compensated.

Assembly of Civil Chamber of Supreme Court, 27.03.2013 Case No.2013/11-209, Decision No.2013/399

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