What is unfair competition?

When we look at the effective economic system in today's conditions, we encounter a liberal economic model. Liberal economy is based on free competition. Therefore, preventing the abuse of competition is a necessity in terms of protecting economic personalities. A race that is not conducted within the framework of honesty rules causes economic losses to individuals. The name of this race, which has certain rules and is protected by legal regulations, is competition.

The issue of preventing unfair competition is important for all countries. Due to this necessity, legal regulations have been made in our country to prevent unfair competition. Türkiye has joined the Paris Convention. According to the agreement, the parties are obliged to create legal protection to prevent unfair competition.

In Turkish legislation, regulations regarding unfair competition are included in both the UK and the TCC. Article 57 of the Code of Obligations provides the right to sue people who have been harmed due to unfair competition.

UNFAIR COMPETITION UNDER THE SCOPE OF TCC

Articles 54 to 63 of the Turkish Commercial Code regulate unfair competition. Article 54 of the Law defines unfair competition as "deceptive or otherwise contrary to the rule of honesty and commercial practices that affect the relations between competitors or between suppliers and customers."

Fault is not necessary for the existence of unfair competition. However, fault is taken into consideration when determining the type of lawsuit to be filed due to unfair competition.

WHAT ARE UNFAIR COMPETITION CONDITIONS?

Article 55 of the Turkish Commercial Code lists the situations that constitute unfair competition. Since the situations mentioned in the article are frequently encountered in practice, these situations are listed to serve as examples of unfair competition. The law does not limit cases of unfair competition. There are situations that are not listed in the law but constitute unfair competition. In the cases listed in Article 55, the existence of unfair competition is accepted without any further examination. When faced with a situation of unfair competition that is not listed in the law, the unfairness of competition is determined by examining it within the framework of Article 54.

The main cases of unfair competition listed in Article 55 of the Turkish Commercial Code are divided into categories.

According to the relevant article;

A- Advertisements and sales methods contrary to the rule of honesty and other unlawful behaviors, and especially;

1. Disparage others or their goods, work products, prices, activities or business by making false, misleading or unnecessarily hurtful statements,

2. Making unrealistic or misleading statements about oneself, its commercial enterprise, business signs, goods, business products, activities, prices, stocks, the form of sales campaigns and business relations, or putting a third party ahead of the competition by the same means,

3. Trying to create the impression that one has exceptional talent by acting as if one has an honor, diploma or award, even though one has not received one, or using incorrect professional names and symbols suitable for this,

4. Taking precautions that prevent confusion with someone else's goods, work products, activities or works,

5. It describes itself, its goods, work products, activities, prices in a way that is untrue, misleading, unnecessarily disparaging of its competitor or unnecessarily taking advantage of its reputation; Comparing goods, work products or prices with others or putting third parties ahead in similar ways,

6. Offering selected goods, work products or activities for sale more than once below the supply price, emphasizing these presentations in their advertisements and thereby misleading customers about their own or their competitors' capabilities; provided that, if the sales price is below the supply price applied to the purchase of similar volumes of the same type of goods, work products or activities, the existence of deception is presumptive; If the defendant proves the actual supply price, this price becomes the basis for evaluation,

7. Mislead the customer about the true value of the presentation with additional actions,

8. Limiting the customer's freedom of decision-making, especially through aggressive sales methods,

9. Concealing the characteristics, quantity, intended use, benefits or dangers of goods, work products or activities and thereby misleading the customer,

10. Not clearly stating the title in public announcements regarding installment sales contracts or similar legal transactions, not stating the cash or total sales price or the additional cost arising from the sale in installments in Turkish Lira and annual rates,

11. Not clearly stating the title in public announcements regarding consumer loans or not making clear statements regarding the net amounts, total expenses and effective annual interest of the loans,

12. Offering or concluding installment sales or consumer loan contracts within the scope of its business activities, and in this context, using contract formulas that contain incomplete or incorrect information regarding the subject of the contract, price, payment terms, contract period, the customer's right of withdrawal or termination, or the right to pay the remaining debt before maturity.

Case number 2 refers to deceptive advertisements. It is not the accuracy of the information in the advertisement that is considered, but the impression it creates on the consumer. If an advertisement misleads the consumer by containing factual information, unfair competition arises. Deceptive advertising and exaggerated advertising are different situations. Exaggerated expressions do not always result in deception. In such cases, the decision is made by looking at the effect of exaggeration on the consumer. Using the TSE trademark without permission is deceptive. Case number 5 applies to comparative advertising. Comparisons should be made in terms of goods or services of the same quality. The comparison made must comply with the rules of honesty. The comparison made should not harm the other party. It is considered unfair competition when manufacturers advertise that the product is at least as good as theirs when comparing it with the product of a rival company. Because the advertiser is considered to have benefited from the rival company without making any effort. What is meant by case number 6 is the situation where the services offered for sale below the supply prices are emphasized in the advertisements. In case 7, which violates the rule of honesty, customers are promised gifts along with the product or service they will purchase.

States 10, 11 and 12 are related to consumer protection. The items listed in the article aim to prevent the consumer from being misled and deceived.

B- Leading to breach or termination of the Agreement; especially;

1. Directing customers to act contrary to the contracts they have made with others so that he can personally make contracts with them,

2. Trying to benefit oneself or others by providing or offering benefits to third party workers, agents and other assistants that they do not deserve and which may lead them to act contrary to their obligations in the performance of their work,

3. Directing workers, representatives or other assistants to disclose or obtain the production and business secrets of their employers or clients,

4. Directing the buyer or borrower who has made an installment sale, cash sale or consumer loan contract to withdraw from this contract, or the buyer who has made a cash sale contract to terminate this contract, in order to be able to make such a contract with him/her.

C- Unauthorized use of others' work products

1. Making unauthorized use of a work product entrusted to him/her, such as a proposal, calculation or plan,

2. Taking advantage of a work product such as a proposal, calculation or plan belonging to a third party, even though it should be known that these have been deposited or provided to him/her without authorization,

3. Taking over and benefiting from someone else's marketable work products through technical reproduction methods, without his/her own appropriate contribution.

D- Unlawfully disclosing production and business secrets;

In particular, anyone who evaluates or informs others of information obtained secretly and without permission or otherwise unlawfully learned, or the business secrets of the producer, acts against integrity. The term secret is used in this clause.

By secret, we mean both information that is completely unknown and information that can only be obtained as a result of a long and costly study. Know-how evaluation is also within the scope of this subparagraph.

E- Failure to comply with business conditions;

Those who do not comply with the business conditions that are imposed on competitors, especially by law or contract, or that are ordinary in a profession or environment, act dishonestly. Situations such as opening courses subject to permission without permission and making discounts outside of discount periods are evaluated within the scope of clause e.

F- Using transaction terms that violate the rule of honesty.

1. Significantly deviates from the legal regulation to be applied directly or through interpretation, or

2. Those who use pre-written general transaction conditions that envisage the distribution of rights and obligations significantly contrary to the nature of the contract are acting dishonestly. The situations listed above constitute unfair competition.

UNFAIR COMPETITION CASES

Article 56 of the Turkish Commercial Code includes civil lawsuits that can be filed due to unfair competition;

a) Determining whether the act is unfair or not

b) Prohibition of unfair competition

c) Elimination of the material situation resulting from unfair competition, correction of these statements if unfair competition is made with false or misleading statements, and destruction of tools and goods effective in the commission of unfair competition, if this is unavoidable for the prevention of infringement,

d) Compensation for damage and loss if there is a defect,

e) Giving moral compensation in the presence of the conditions stipulated in Article 58 of the Turkish Code of Obligations. In addition, the party subjected to unfair competition has the right to request precautionary measures.

1- Determination Case

In the determination case, the defendant's behavior is examined. It is decided whether this behavior constitutes unfair competition or not.

2- Disqualification Case

It ensures that unfair competition that is ongoing or likely to recur is stopped.

3- Case for Elimination of Financial Situation Resulting from Unfair Competition

With this lawsuit, the financial situation obtained as a result of unfair competition is eliminated. In addition, correction can also be requested through a lawsuit. If unfair competition is made with misleading statements, it is requested that these statements be corrected. Again, in this case, as a last resort, the destruction of the goods subject to unfair competition and the tools used in their production may be requested. Destruction is only applied if infringement cannot be prevented otherwise.

4- Compensation Case

The perpetrator does not have to be at fault in order to file the cases we have listed above. However, the prerequisite for claiming compensation from the person who committed an unfair act is fault.

The general rule in a compensation case is that the damage must be proven by the plaintiff. However, it is very difficult to prove damage in unfair competition cases. For this reason, Article 56 of the Turkish Commercial Code has paved the way for the plaintiff to claim damages that are considered possible to obtain as a result of unfair competition.

In addition to material compensation, non-pecuniary compensation may also be claimed if the conditions exist.

QUALIFICATION OF PLAINTIFF IN UNFAIR COMPETITION CASES

As a rule, the right to file a lawsuit belongs to the person who has been harmed or is likely to be harmed. In addition, Article 56/2 of the Turkish Commercial Code. According to the article, customers whose economic interests have been damaged or who may face such a danger are also given the right to file a lawsuit, but it is regulated that these people can request the destruction of vehicles and goods.

Law 56/3. Article "Chambers of commerce and industry, chambers of tradesmen, stock exchanges and other professional and economic associations 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, may also file the lawsuits written in subparagraphs (a), (b) and (c) of the first paragraph." According to his statements, some institutions and organizations have been granted the right to file the lawsuits listed in paragraphs a, b and c.

AGAINST WHO CAN AN UNFAIR COMPETITION CASE BE FILED?

Again, as a general rule, the title of defendant belongs to the person who committed the unfair act. In addition, if unfair competition is committed by employees, lawsuits in paragraphs a, b and c can be filed against these people.

Article 58 of the Turkish Commercial Code states, "If unfair competition has been committed through all kinds of press, broadcasting, communication and informatics enterprises, and organizations that will become operational as a result of future technical developments, the lawsuits written in subparagraphs (a), (b) and (c) of the first paragraph of Article 56 can only be filed against the owners of the thing published in the press, the program, the thing displayed on the screen, on the computer device or similar media, the thing published as sound or transmitted in any way, and the people who advertise." It is in the form.

UNFAIR COMPETITION STATEMENT

Unfair competition lawsuits must be filed within 1 and in any case 3 years from the day the party with the right to sue learns of the birth of this right. If the act of unfair competition is also an act that requires a penalty and is subject to a longer statute of limitations in accordance with the Turkish Penal Code, this period is also valid for civil cases.

UNFAIR COMPETITION CRIMES

According to Article 62 of the Turkish Commercial Code;

a) Those who intentionally commit one of the unfair competition acts written in Article 55,

b) Those who deliberately provide false or misleading information about their personal situation, products, business products, commercial activities and affairs in order to prefer their own offers and offers to those of their competitors,

c) Those who deceive their employees, agents or other assistants in order to obtain the production or trade secrets of the employer or their clients,

d) Those who learn from employers or clients that their workers, employees or representatives have committed an act of unfair competition that requires punishment during the course of their work, but do not prevent this act or correct untrue statements,

Unless the act constitutes another crime requiring a more severe penalty, upon the complaint of one of those who have the right to file a civil lawsuit in accordance with Article 56, they will be punished with imprisonment for up to two years or a judicial fine for the acts falling within the scope of each clause.

For legal entities, security measures specific to legal entities are applied.

Investigation and prosecution of crimes are subject to complaints.