Abstract
In this article, the concept of unfair competition is examined in the context of Turkish Commercial Code. According to the Turkish Commercial Code, what unfair competition is and the purpose of the provisions of the law are examined. The place of unfair competition in Turkish legislation is explained in detail. In order to be able to talk about unfair competition, the conditions sought are listed. When faced with unfair competition, who is authorized to file which lawsuits are discussed. And finally, the sanctions that a person who commits this act will face are mentioned.
1. Introduction
The whole of actions taken by an institution or person in any field in a way that harms another is unfair competition. Essentially, competition is an indispensable concept of commercial law in social and economic life. The quality of the services provided and the products produced, and the efficiency of the enterprises increase with competition; prices drop with competition. When the Competition Authority does not work as expected, some precautions must be taken in order for the economic policies to function properly. One of these measures and undoubtedly the most important one is the measures taken against unfair competition. In other words, unfair competition is a set of rules that have been put in place in order to prevent the abuse of the right of competition.
2. Unfair Competition Within The Context Of Turkish Commercial Law
The concept of unfair competition is regulated between Articles 56-63 of the former Turkish Commercial Code, which came into force in 1957, by quoting the Swiss Federal Law. The definition of unfair competition, its examples, the rights of persons exposed to tortious acts and sanctions are included in the provisions of the law of 1957 of the Turkish Commercial Code. However, the continuous development and change of the economy has led to the emergence of new types of unfair competition and the examples given in the law have been insufficient. For this reason, the legislator avoided counting the cases of unfair competition one by one and gave the judge a wide margin of appreciation in this regard.
TCC numbered 6102 aims to create an honest competitive environment. Article 54 of the TCC states that the aim of the regulations regarding unfair competition is to protect the interests of all participants and to provide an undistorted and honest competition environment. In this state, the legislator specifies the aims and principles of unfair competition instead of including the definition in the first provision in which it regulates unfair competition. According to the legislator, lawful competition; unspoiled and fair competition. Here, fair competition means legitimate competition, and undistorted competition means lawful competition.
The TCC evaluates the competition provisions under two main issues. One of them is the necessity of maintaining an environment of undisturbed and fair competition for the benefit of all participants; the other is the importance of the rule of honesty. The basis for the regulation of unfair competition provisions is to ensure that buyers and sellers operate under the best possible conditions in the free market and that consumers can compare products correctly. It is essential to create a transparent market environment in order for the consumer to make the comparison in a healthy way.
The previous TCC, while regulating unfair competition, took into account the commercial and economic relations in the years it was issued. As a result of the changes in the developing economy and trade life, the necessity of arranging a new legislation has arisen. Fundamental changes were made with the new TCC, and the concept of "competitors", which refers only to those who compete as the addressee of the regulations, has been expanded and referred to as "participants", unlike the previous TCC. Thus, besides the competitors, suppliers and consumers are also included in the scope of the regulation.
Another important change in the new TCC is that the limited number principle has been removed. As a manifestation of innovations in economic life and commercial developments, new unfair competition situations that could not be foreseen have begun to emerge. With the foresight that these unfair competition situations will increase day by day, the new TCC avoided counting unfair competition situations one by one and expanded the scope of the concept.
3. The Place of Unfair Competition in Legislation
Articles 56-58 of the Turkish Commercial Code regulate the legal liability of the person who commits an act that will constitute unfair competition. Article 56 clarifies who can file a lawsuit when unfair competition occurs and what legal claims they can make. The responsibility of the employer is regulated in article 57, and the responsibilities of media organizations are regulated in article 58. In Articles 62 and 63, which regulate the criminal liability of a person who commits an act that will lead to unfair competition, real persons may be sentenced to imprisonment for up to two years or a judicial fine; For legal entities, it is stated that security measures specific to legal entities can be taken. Although it has been said above that the limited number principle has been abandoned in the new TCC, in accordance with the principle of "legality in crime and punishment", no penalty can be imposed for an act of unfair competition that is not explicitly listed in article 62 of the law.
4. Conditions of Unfair Competition under the TCC
In order to be able to talk about unfair competition in the context of the TCC, the existence of a number of issues is sought. The first of these is deceptive, fraudulent, and contrary to the good faith commercial practices that interfere with the relations between competitors or suppliers and consumers. Besides, the perpetrator must be at fault. In a situation where the perpetrator is flawless, there is no unfair competition either. In addition, the legislator did not attribute the existence of unfair competition to the occurrence of any damage. Even if no damage has been caused as a result of the act, unfair competition may have occurred. Likewise, the legislator does not seek a competitive relationship. Even if there is no competitive relationship between the parties, unfair competition can be mentioned.
5. Cases of Unfair Competition
As explained above, cases of unfair competition are not subject to the principle of limited numbers in the new TCC. However, in the Turkish Commercial Code, sampling was still used and some unfair competition situations were listed. The cases of unfair competition listed in the TCC are as follows:
- Advertisements and sales methods against the rule of honesty and other illegal acts,
- To lead to breach or termination of the contract,
- Unauthorized use of other people's work products,
- Disclosure of production and business secrets unlawfully,
- Not complying with business conditions,
- To use transaction terms contrary to the rule of good faith".1
6. Lawsuits That May Be Filed in Case of Unfair Competition
In the context of the New TCC, in case of unfair competition, there are a number of lawsuits that the relevant persons can file. As stated in article 56 of the TCC, the lawsuits that can be brought are the determination lawsuit, the lawsuit for the prohibition of unfair competition, the lawsuit for the rejection of unfair competition and the compensation lawsuit. It is aimed that the person concerned will be able to redress the loss by filing these lawsuits. What is meant by the person concerned is those whose economic interests are in jeopardy or who are harmed. In addition, lawsuits other than compensation cases can also be filed by professional associations, chambers and related non-governmental organizations.
The only thing that can be achieved with the determination case is to determine whether there is an unfair competition situation. The interruption and termination of an existing act of unfair competition will be possible with the case of prohibition of unfair competition. A lawsuit may also be filed for the elimination of the damages caused as a result of the act causing unfair competition, for the reinstatement or for the correction of false/misleading statements, if any. All negative consequences of the act giving rise to unfair competition should be reported while this case is pending. Although the aforementioned lawsuit is not in the nature of compensation, it is possible to file a lawsuit together with the compensation lawsuit. Compensation lawsuits can be filed in two types, material or moral, depending on the requirements of the situation. It is aimed that the injured party, who can prove that the perpetrator is at fault, compensates for the damages caused by the act of unfair competition. Plaintiff's burden of proof; The fault of the perpetrator is on the existence of the causal link and the amount of damage. If the lawsuit is filed with a claim for financial compensation, compensation in proportion to the damage; If a claimant for non-pecuniary damage is filed, it may be decided to pay the compensation or to announce the act by condemning it.
As a result of these lawsuits filed by persons who have the capacity to file a lawsuit, the court may decide to protect the current situation, to end unfair competition or to correct false statements within the framework of the provisions of the Code of Civil Procedure. In addition, the court, upon the request of the person concerned, may take the decision to confiscate the goods that cause unfair competition by the customs administration during import-export.
These lawsuits regarding unfair competition should be filed "within one year from the learning of the act and probably within three years from the commission of the act". Pursuant to the provision of Article 60 of the Turkish Commercial Code, in cases where the act is specified in the Turkish Criminal Code and the statute of limitations is stipulated longer, the act will be subject to this statute of limitations.
Unfair competition crime is one of the crimes related to the complaint. The person who learns that the crime has been committed and the perpetrator should use the right to complain within six months from the date of learning. The criminal case, which started with the complaint, will be dismissed with the abandonment of the complaint. If the right owner does not file a complaint within six months, if he misses this period, he will not be able to make a complaint about the same act later on. In accordance with the provisions of the TCC, the persons who can complain about the crime of unfair competition are as follows:
- Real or legal persons whose customers, credit, professional reputation, commercial activities or other economic interests are damaged or may face such a danger due to unfair competition,
- Customers whose economic interests are damaged or who may face such a danger,
- Chambers of commerce and industry, chambers of tradesmen, stock exchanges and other professional and economic unions authorized to protect the economic interests of their members, non-governmental organizations and public institutions that protect the economic interests of consumers.
7. Sanction of Unfair Competition Offense
The trial of the crime of unfair competition is carried out by the Criminal Courts of First Instance. Every perpetrator who commits the acts of unfair competition specified in the TCC is punished with a prison sentence of up to two years or a judicial fine upon complaint. A judicial fine may be imposed instead of or in combination with a prison sentence when a crime is committed. In addition to these sanctions, it may also be decided to defer the announcement of the verdict or to postpone the sentence regarding the said act. Postponing the announcement of the verdict as regulated in Article 231 of the Turkish Criminal Code, after the court determines that the crime was committed by the accused, the sentence is decided, but the sentence given about the accused does not yield results within a certain inspection period; If a new crime is not committed by the accused during the inspection period, it is a criminal law institution that means the abolition of this unexplained conviction without any consequences and the dismissal of the case. Thus, the defendant is considered to have never committed the crime. The crime of unfair competition is an appropriate crime for the decision to defer the announcement of the verdict.
Suspension of the sentence is a criminal law institution that ensures that the sentenced prison sentence is deemed to have been executed if the accused performs well within the specified inspection period. When a prison sentence is given for the crime of unfair competition, it is possible to postpone the sentence in accordance with the Turkish Criminal Code.
8. Conclusion
As can be seen the new TCC, unlike the previous one, rejected the limited number principle in cases of unfair competition. In order to protect the interests of those concerned, the application area of the regulation has been expanded. It is important to state that it is possible to prevent or completely eliminate unfair competition only by sticking to the rule of good faith.
References
1. Hamdi YASAMAN, "Unfair Competition and Prohibition of Competition", Ankara: Seckin
Publishing House, 2020.
2. Ilhami GÜNES, "Intellectual and Industrial Property Rights and Unfair Competition
Lawsuits in Practice", Ankara: Seckin Publishing House, 2020.
3. Ismail KAYAR, "Commercial Law", Ankara: Seckin Publishing House, 2019.
4. Nur CENTEL/Hamide ZAFER, Criminal Procedure Law, 18th edition, Istanbul: Beta
Publishing, 2020.
5. Orhan Gazi SARIDAG, "Return to Unfair Competition Law", Istanbul: On Iki Levha
Yayinlari, 2019.
6. Ozan Can ÖZBALÇIK, "Unfair Competition Offenses within the Scope of art. 62/I-b, c, d
of TCC", Ankara: Seçkin Publishing House, 2020.
7. Turkish Penal Code No. 5237
8. Former Turkish Commercial Code No. 6762
9. Turkish Commercial Code No. 6102
Footnotes
1 Abdulkadir Güzeloglu, Tarik Kurban, 6102 sayili Türk Ticaret Kanunu Kapsaminda Haksiz Rekabet, 2017
2 TTK m.62 atfi ile TTK m.56'da belirtilmistir.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
