Alternative Remedy for Anti-Counterfeiting: Complaint before Advertisement Board

In its recent decisions [1], the Advertisement Board evaluated in accordance with the Law No. 6502 on Protection of the Consumer ("Consumer Protection Law”) and the Regulation on Commercial Advertisement and Unfair Commercial Practices (“Advertising Regulation”) the advertising of counterfeit products that were sold and advertised as genuine products on various websites, Instagram pages. The Advertisement Board imposed monetary sanction fine against these advertisements.

In the cited decisions, the Advertisement Board determined that footwear products of well-known brands which have high reputation before the consumers are offered for sale on the websites and Instagram pages subject to the complaint for surveillance and those products are advertised and promoted as genuine products on these websites. It has also been determined that the products delivered to the consumers upon order are low quality products in terms of material used, appearance, features and that those products do not reflect the quality standards expected from these well-known trademarks which are symbol of quality in the consumers perspective. Accordingly, the delivered products have been found to be counterfeit products. Therefore, the Advertisement Board has evaluated that the claims regarding authenticity of the products in these advertisements available on the specified websites do not reflect the truth, and that the advertisements and promotions which affect the purchasing decision of the consumers are deceptive, misleading and exploiting the lack of information of the consumers. Consequently, the Advertisement Board has concluded that the advertisements subject to scrutiny violated the Consumer Protection Law and the Advertising Regulation. Furthermore, it has been decided to issue cease order against the said advertisements and to also issue administrative monetary fine taking into account the internet channel where the advertisements are broadcasted and the date thereof.

In its decision numbered 2021/833 rendered at the meeting dated 09.03.2021 and numbered 307 of the Advertisement Board, it has been determined that the complainant company’s trademark registered before the Turkish Patent Trademark Office has been used without permission in the promotions and advertising made on the website of the complained party. The Advertisement Board evaluated that the complained party, due to unpermitted use of the trademarks, unfairly benefited from the trademark rights as well as the commercial reputation of the complainant. Therefore, the said advertising was found to be misleading, deceptive and exploiting the lack of information in a way that would affect the purchasing decisions of the consumers. It is concluded by the Advertisement Board to issue cease order against the said advertising and to impose administrative monetary sanction for the advertisements that violated the Consumer Protection Law and the Advertising Regulation.

In our opinion, it is important that the Advertisement Board which is established under the Ministry of Trade’s General Directorate of Consumer Protection and Market Surveillance carries out administrative surveillance as well as effective, multi-legged supervision against advertisements and promotions of counterfeit products and implements administrative sanctions stipulated in the Consumer Protection Law and Advertising Regulation. The aforementioned decisions are also exemplary in terms of affirming that the trademark right holders can alternatively resort to administrative remedies, in addition to judicial remedies against trademark infringement

[1] The decision numbered 2019/9106 rendered at the meeting dated 04.05.2021 numbered 309 as well as the decision numbered 2019/2610 rendered at the meeting dated 11.08.2020 numbered 300