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CategoryUnfair Competition
Published14 February 2026
Authors
Uğurcan TekinPartner
Beyza ErdemirAttorney at Law

Misleading Statements and Unfair Competition Based on Non-Finalized TÜRKPATENT Decisions

The Turkish Patent and Trademark Office was established in order to create industrial property rights, provide protection in that field, and make available to the public the information and documentation existing at home and abroad in relation to those rights — with the aim of contributing to Türkiye’s technological progress, creating an environment of free competition within the country and enabling the development of research and development activities. The Office is a public institution with legal personality and a special budget, attached to the Ministry of Industry and Technology.

The Office is empowered to take administrative decisions on matters of industrial property. An action for the annulment of an Office decision may be brought before the Ankara Civil Court for Intellectual and Industrial Property Rights within two months of notification of a final decision. This demonstrates that although the Office issues administrative decisions, the court charged with reviewing those decisions is not an administrative court but the Ankara Civil Court for Intellectual and Industrial Property Rights.

Today, misleading assertions are made on the basis of non-finalized Office decisions, commercial advantage is sought and the competitive environment can be distorted. The use of decisions that have not yet become conclusive in a manner that misleads consumers and harms competing firms in the commercial environment may constitute unfair competition and give rise to legal sanctions.

This article addresses in detail how non-finalized Office decisions are assessed within the framework of unfair competition and the legal measures that may be taken against such conduct.

A decision may be final within the Office and still not be conclusive in law.

Part A — Examination in Terms of Trademark Rights

The Application Process, Decisions of the Trademarks Department and the Re-examination and Evaluation Board, Annulment Actions and Finality

Under Article 4 of Industrial Property Code No. 6769, any sign may be registered as a trademark provided that it does not contravene the grounds for refusal set out in Articles 5 and 6. A trademark application is first examined by the Office under Article 16. At that initial stage, it is assessed whether the application is subject to the absolute grounds for refusal. Following that examination the Office may refuse the application in whole or in part. A refusal or partial refusal is notified to the applicant under Article 20/2, and the applicant has the right to object to that decision.

Applications in respect of which no absolute ground for refusal is found following the Office’s ex officio examination are published in the Official Trademark Bulletin under Article 16/2. Third parties may oppose applications published in the Bulletin within two months of the date of publication, under Article 18, on the ground that the application contravenes Articles 5 or 6. The Office notifies the opposition to the applicant and grants a period of one month to submit a defence. The Trademarks Department then assesses the opposition and may decide that the mark cannot be registered in respect of some or all of the goods or services covered by the application; otherwise the opposition is rejected.

An objection may be filed against the decision of the Trademarks Department before the Re-examination and Evaluation Board within the Office, within two months of notification of that decision. A decision of the Trademarks Department can become a final and conclusive decision within the Office only where no objection is filed against it.

As stated in the decision of the Assembly of Civil Chambers of the Court of Cassation of 24 May 2023 (Case No. 2022/1006 E., 2023/517 K.): “The concepts of an administrative decision ‘having become conclusive’ and ‘being final’ are also different. In this context, the conclusive decision of the Office may have been taken by the Trademarks Department or by the Re-examination and Evaluation Board; however, only the Board takes the final decision. Where no objection is filed within time against a decision of the Trademarks Department, that decision becomes conclusive as a decision of the Office upon expiry of the objection period.” While an objection has been filed against a decision of the Trademarks Department and the Board is conducting its examination, the decision of the Trademarks Department cannot be regarded as a conclusive and final decision.

The Board assesses the objection filed against the decision of the Trademarks Department and issues the final decision within the Office. Yet although a Board decision is final within the Office, an action for annulment of that decision may be brought before the Ankara Civil Court for Intellectual and Industrial Property Rights within two months of its notification. If no action is brought within that period, the Board decision will be regarded as having become conclusive, since no further step may be taken against it. Where an annulment action is brought, however, although the Board decision constitutes the Office’s final decision, the completion of the judicial process must be awaited before that decision may be made the subject of any transaction.

For that reason, a Board decision in respect of which an annulment action has been brought must be regarded as a decision that has not yet become conclusive, and it should not be taken as a basis for any determination.

Benefiting From Trademark Rights Without a Conclusive Decision, and Misleadingness

Trademark applicants today begin to make active use of marks whose registration process has not yet been completed, and to benefit from the legal advantages of those marks. Where this is done in accordance with the rules laid down in the Industrial Property Code, no problem arises. For example, using the “™” symbol — indicating that the mark is still in the application stage or is not registered — instead of the “®” symbol denoting a registered mark, or opposing third-party marks before the Office and bringing infringement actions against unlawful use by third parties after the mark’s publication in the Bulletin, are lawful.

In certain cases, however, trademark applicants benefit from the rights set out in the Industrial Property Code not in a lawful manner but in a way capable of misleading third persons and institutions, and this may directly or indirectly cause loss. The remainder of this article assesses whether statements contrary to the truth, made notwithstanding the absence of a final or conclusive Office decision to that effect, give rise to unfair competition.

The first situation to be examined is the misleading of consumers and other relevant persons and institutions by presenting unregistered marks as registered. Proprietors who have applied for registration of their marks may, before the registration process has been completed — that is, before the Office has issued a final registration decision — make statements creating the impression among consumers that the mark has been registered. Applicants may also make marks whose registrability is not yet determined the subject of various agreements and advance legal claims on the basis of rights that have not yet arisen.

It goes without saying that express statements by proprietors that their unregistered marks are “registered” will mislead consumers and other relevant persons and institutions. In addition to such express statements, proprietors may also create the perception that a mark is registered by using various symbols. In many parts of the world, registered marks are denoted by the “®” symbol and marks at the application stage or never registered by the “™” symbol. In some countries the use of these symbols is mandatory, and failure to use them may cause difficulties in asserting rights against third parties. In others, while not mandatory, they are the subject of express legislative provision. In Türkiye there is neither an obligation nor a legislative provision on the use of these symbols. Notwithstanding the absence of any obligation or legislative provision, use of these symbols by a proprietor in a manner contrary to the truth may give rise to manifest misleadingness.

In sectors where competition is intense, moreover, competing undertakings closely monitor trademark applications and regularly oppose applications published in the Bulletin on various grounds. Where an application is opposed, the Trademarks Department first carries out an assessment and issues a decision. If an objection is filed against that decision, the Board issues a final decision on behalf of the Office. Although a Board decision is final in nature, it cannot be used as a conclusive basis in any dispute until it has become conclusive.

Notwithstanding this, some competing undertakings present a non-finalized decision as though it were conclusive, or apply to various institutions and bodies, or make misleading public statements, as though a final Office decision existed when it does not. Such conduct both distorts the competitive environment and causes serious harm to the commercial activities of the persons about whom unfair and unlawful statements are made.

Unfair Competition Claims and Related Actions

In the light of the above, acts carried out by applicants or third parties on the basis of decisions relating to trademark rights that have not yet become conclusive may fall within Article 55/1-a-1 of Turkish Commercial Code No. 6102 — “disparaging others, or their goods, work products, prices, activities or commercial affairs, by means of incorrect, misleading or unnecessarily offensive statements” — and may constitute unfair competition.

It is accepted in scholarship that, for negative statements made about others to constitute unfair competition, the following elements must be present:

  • There must be a statement
  • That statement must concern the person, goods, work products, prices, activities or commercial affairs of another
  • That statement must be incorrect, misleading or unnecessarily offensive

In precedent decisions, the requirement of disparagement sought by the provision is described in general terms as the creation of a negative impression concerning a person’s commercial life. Scholarship characterises disparagement as “any defamatory or belittling statement of any kind or content having a negative effect upon its addressee”, and intent is not required for disparagement to exist. One view in scholarship holds that the purpose for which the statement was made is immaterial, and that intent to advance oneself or a third party is not required for an act of disparagement constituting unfair competition.

Whether competition has been affected is assessed by reference to the perception the statement creates in the mind of an impartial and reasonable member of the audience it reaches. Whether disparaging statements are made in the physical or virtual environment, and whether they are oral, written or audible, therefore does not alter the result. Likewise, the size of the audience reached is not determinative in characterising the act as unfair competition. Where a statement has reached, or is capable of reaching, third parties other than its maker and its direct addressee, that statement must be regarded as “capable of affecting the competitive environment”.

In this context, statements made as though a trademark right not yet registered were registered are to be regarded as incorrect and misleading statements and may constitute unfair competition. The unfair competition may be express, or may arise from incorrect use of the “®” and “™” symbols. For example, where a proprietor whose mark has not yet been granted registration signs licence agreements presenting it as registered, and the licensees are subsequently unable to exercise rights founded on registration, the conditions of unfair competition against the licensees must be regarded as satisfied. Misleading statements as to the classes in which a proprietor’s mark is registered must likewise be assessed in this context. Where, for instance, a proprietor sends information letters to a competitor’s customers presenting its mark as covering goods it does not in fact cover, and states that it is the owner of that mark, customers will obtain information contrary to the truth by reason of the failure to distinguish between classes, and that may give rise to unfair competition to the detriment of the competing firm.

Communications sent to a competitor’s customers on the strength of a non-conclusive decision are a recurring source of liability.

Statements and misleading assertions made by third parties about a mark or its proprietor on the basis of a non-finalized Office decision must likewise give rise to unfair competition. Competing firms, for example, enter into trademark registration processes in the context of various incentives and supports provided by public bodies or private institutions. Those supports are frequently made conditional upon the mark having been registered or upon the application process proceeding favourably. In practice, however, some firms’ applications may be refused by the Trademarks Department following the Office’s ex officio examination or upon the opposition of third parties. Such refusals are not always conclusive, since there is a right of recourse to the Board and thereafter to the courts. At this point, a competing firm may apply to the ministry or institution providing the support, relying on a refusal that has not yet become conclusive, and request cancellation of the support on the ground that the competitor holds no trademark right. In such a case, the institution assessing the complaint must examine the information submitted to it with care and investigate whether the decision relied upon has become conclusive. If the refusal has become conclusive, the institution is free to take the necessary steps. If it has not, however, interrupting or cancelling the support process may produce unlawful consequences. Depriving a commercial undertaking of support, or causing it loss, on the basis of a non-conclusive decision will be regarded as constituting unfair competition directly. Misdirecting public institutions or third parties on the basis of non-finalized decisions, thereby harming a competitor’s commercial position, must be assessed as unfair competition under the Turkish Commercial Code.

Where the situations described above occur, the injured party may bring a civil action for the determination and prevention of the unfair competition and the elimination of its consequences. Actions for unfair competition are absolute commercial actions under Article 4 of the Turkish Commercial Code, and the courts having jurisdiction over such actions should be the Commercial Courts of First Instance. In some cases, however, it is possible for the courts for intellectual and industrial property rights (or the civil courts of first instance acting in that capacity) to be competent on the ground that the matter arises from an industrial property dispute. There is no clear uniformity of practice here. The court with territorial jurisdiction is the court of the defendant’s domicile or — since unfair competition is in essence a tort — the court of the place where the tort was committed, where the damage occurred or is likely to occur, or the court of the injured party’s domicile.

In addition, under Article 62 of the Turkish Commercial Code, acts of unfair competition give rise not only to private-law liability but are also regulated as criminal offences. Accordingly, a person injured by the offence may exercise the right of complaint within six months of learning of the act and its perpetrator and request that a criminal investigation be opened.

Part B — Examination in Terms of Patent and Utility Model Rights

The Patent Application Process and the Office’s Final Registration Decision

A person or persons who have made an invention may apply to the Office for registration of a patent for that invention. The application is first subjected to a formal examination by the Office, at which stage it is checked whether the elements set out in Article 90 of the Industrial Property Code are present in the application. After a patent application has been filed, the applicant must request a search within twelve months of the application date. If no search request is made within that period, the application is deemed withdrawn. Following notification of the search report, the applicant must request substantive examination within three months by paying the requisite fee; otherwise the application will again be deemed withdrawn.

Under Article 97 of the Code, a patent or utility model application is published in the Official Bulletin upon the expiry of eighteen months from the application or, where applicable, the priority date, or upon the applicant’s request for early publication. Third parties may oppose a patent application published in the Bulletin within six months of the date of publication of the decision to grant the patent. Payment of the requisite fee is a condition of opposition. The opposition is notified by the Office to the patent proprietor, who is given three months to submit observations or to amend the patent. The opposition is assessed by the Board having regard to the observations submitted and any requested amendments.

The final decision issued as a result of the opposition is published again in the Bulletin. The patent applicant, the patent proprietor or interested third parties may object to that decision within two months of its notification. The decision issued by the Office following that objection is the final decision to be taken within the Office.

As explained in the trademark section, however, the Office’s final decisions do not mean decisions that have become conclusive. For a final decision to become conclusive, no annulment action must have been brought before the Ankara Civil Court for Intellectual and Industrial Property Rights within two months of its notification.

Accordingly, at a stage at which the two-month peremptory period has not expired, an Office decision will not be regarded as conclusive, and it will not be possible to carry out transactions founded on legal consequences arising from that decision. This must be borne particularly in mind in practice, and the finality status of the decision must always be verified before a transaction is carried out.

Benefiting From Patent Rights Without a Conclusive Decision, and Misleadingness

Just as it is very difficult today to make an invention, the process of registering that invention — that is, of “obtaining its patent” — is extremely complex and demanding from both a technical and a legal perspective. Although the expression “patented” is frequently and readily used in everyday language, patent registration is a multi-stage process, and the emergence of a conclusive right depends on serious legal and technical conditions.

Notwithstanding this, applicants use the term “patented” on their products or in their activities without regard to whether their applications have become conclusive, creating a misleading perception among consumers. As explained in detail above, such use, carried out in the absence of a conclusive and final decision before the Office, will be unlawful and may give rise to liability for unfair competition.

Indeed, Article 106/4 of the Industrial Property Code provides that “a person asserting the rights conferred by a patent application or a patent shall be obliged to notify the number of the patent application or the patent to the persons against whom those rights are asserted”. This provision is of considerable importance in industrial property law, since patented products materially affect consumers in many sectors.

Products that are the subject of patents are capable of directly affecting consumer safety in many sectors, including health, food, textiles and technology. For example, placing a machine that is still only at the application stage on the market with the impression that it is “patented” may, through the products that machine manufactures, produce consequences that threaten public health and cause irreparable harm.

Patent applicants should therefore refrain from using the term “patented” on their products before a final registration decision has become conclusive, and should state clearly that their products are only at the application stage. This will both prevent consumers from being misled and ensure lawful use.

Beyond that, many slimming products are marketed to consumers today. For some of these products only a patent application has been filed, yet the products are placed on the market with the impression of being “patented” before the application process has been completed. Consumers are thereby given the false impression that the product is safe and has been approved by the Office. In reality, however, some of these medicines cause serious health problems and may even lead to deaths. Offering such products to consumers on the basis of a patent application that has not become conclusive gives rise not only to individual harm but also to the endangering of public health.

Likewise, where the holder of a patent right still at the application stage signs licence agreements presenting the right as registered before a registration decision has been issued, and the licensees are subsequently unable to exercise rights founded on registration, the conditions of unfair competition against the licensees must be regarded as satisfied. Presenting an invention that is the subject of a pending application as a “patented product” is similarly misleading for competing firms operating in the same market, since the invention may not in fact satisfy the criterion of novelty and may not be patentable. Yet the applicant’s assertions of a “patented product” may create the perception that a particular company has obtained a registered right over the product. Such promotion prejudices the legitimate rights of other undertakings already manufacturing and selling that product millions of times over.

In its decision of 17 March 2022 (Case No. 2021/3493 E., 2022/2025 K.), the 11th Civil Chamber of the Court of Cassation considered notices sent to customers which stated that an interim injunction had been obtained against a firm on the ground that it was manufacturing using a process patented by another, but which failed to state that the injunction was limited to the patented process — thereby giving the impression that the whole of the firm’s mattress-surface production fell within the scope of the patent right. The Court held that unfair competition had arisen on the ground that the notice created an incorrect and misleading impression of the firm among its customers. This alone demonstrates that any statement or use extending the rights arising from a patent may constitute unfair competition.

In the light of the above, applicants must act in accordance with the rule of good faith when asserting rights arising from patent applications within the framework of Article 106/4, and must state clearly that the application is only at the “application” stage. Statements contrary to the truth and misleading assertions extending the scope of protection of the invention may give rise to serious legal consequences both in unfair competition law and in consumer protection law.

Uses made before the registration process of an invention has been completed are not confined to applicants; they may also be carried out by third parties. Such uses are likewise regarded as unfair and unlawful.

In particular, many advertising agencies use expressions such as “THE FIRST PATENTED … IN TÜRKİYE” in product promotions in order to increase the revenue generated by the advertisement. Where such uses do not reflect the truth, they both harm other firms operating in the sector and indirectly create misleading perceptions among consumers about competing commercial undertakings. Such statements may damage the commercial reputation of others and may also lead consumers to make erroneous choices, thereby distorting the environment of honest competition in the market.

Misleading advertisements and promotions of this kind are assessed under the unfair competition provisions and may be the subject of various legal sanctions both in private law and in criminal law.

Patent applications presented as granted rights are a recurring source of consumer harm.

Court of Cassation Practice in the Light of Precedent Decisions

Although there is no decision directly addressing misleading statements or uses made in the absence of a conclusive and final Office decision on industrial property rights, we are of the view that decisions establishing unfair competition based on misleading statements or uses between commercial undertakings under the Turkish Commercial Code should be applied by analogy in the field of industrial property rights.

In this context, as explained in the decision of the Assembly of Civil Chambers of the Court of Cassation (Case No. 2019/519 E., 2022/83 K., 8 February 2022), misleading statements are statements whose content does not accord with reality and which are objectively incorrect as to a particular fact, event or situation. The sole criterion for determining whether a statement is “incorrect” is whether it accords with reality. Statements not conforming to reality are statements whose truth or falsity can be objectively established. Every kind of incorrect statement about facts will be assessed as unfair competition; where the statement is true, there can be no question of unfair competition. A misleading statement, by contrast, is one which — when its nature, manner and content are assessed together — is capable of causing its addressee to fall into error and of leaving a false impression. In other words, a misleading statement means that the subject of the statement is perceived differently and unfavourably from what it in fact is, as a result of the general impression left on the target audience by the manner of presentation, the words chosen, the images used or the comparison drawn.

Where, however, statements between competitors rest on material facts — that is, on matters capable of being proven true or false — the fact that the truth or falsity of the assertions cannot be established renders the expression used in the advertisement unfair. By contrast, accusations founded on true facts are regarded as lawful so long as they are expressed in an appropriate manner and are not unnecessarily offensive.

One view in scholarship holds that a misleading statement may also arise where a necessary statement is not made, thereby misleading the addressee. In such a case, the failure to make the explanations or additions necessary for the matter to be perceived by the addressee fully, accurately and in accordance with reality may be regarded as misleading. Misleading statements are statements which, considered together with their nature, manner and content, are capable of causing the addressee to perceive matters incorrectly and of leaving a false impression.

It is accepted in scholarship that a misleading statement may constitute unfair competition where it has the effect of reducing the esteem in which the disparaged person is held by the target audience, or gives rise to a reaction damaging to that person’s reputation.

In its decision numbered 2013/10884 E., 2014/1111 K. of 20 January 2014, the 11th Civil Chamber of the Court of Cassation held: “In accordance with the claim, the defence, the collected evidence, the expert report and the entirety of the case file, the court accepted the action on the ground that, although there was as yet no conclusive court decision concerning the fault attributed to the plaintiff, the defendants — whatever the reason — sent e-mails to seventy-four companies operating in the same field as the plaintiff, which were not proven to be the defendant’s customers and which, even if proven, would be immaterial, in a manner creating the impression that a court decision existed on the matter; that this would give rise to belittling and disparaging consequences for the commercial reputation which the trader accused of fault had created and sought to protect through particular effort, time and expense; and that it further shook the plaintiff company’s trust and reputation before other firms and constituted unfair competition…” This decision alone demonstrates that an e-mail sent in respect of a non-existent decision concerning an undertaking was regarded as damaging commercial reputation and assessed within the scope of acts of unfair competition.

In its decision numbered 2021/1768 E., 2024/601 K. of 25 April 2024, the 12th Civil Chamber of the Istanbul Regional Court of Appeal likewise found that “the defendant’s making of various disparaging statements about the plaintiffs through Facebook and Instagram accounts, without a conclusive court decision and without concrete evidence — using expressions to the effect that they ‘paid their employees less than the minimum wage, usurped their employees’ rights and engaged in mafia-like conduct, and that the defendant company’s manager had defrauded colleagues’ — constituted the situation of ‘disparaging others, or their goods, work products, prices, activities or commercial affairs, by means of incorrect, misleading or unnecessarily offensive statements’ enumerated among the cases of unfair competition, and that, having regard to Article 56 of the Turkish Commercial Code, the defendant had acted contrary to the unfair competition provisions regulated in that Code…”

In the light of all of the foregoing, just as uses made as though a court decision existed when it does not are regarded as acts of unfair competition, uses made in the absence of a final and conclusive Office decision must likewise be assessed, in accordance with those decisions, as acts of unfair competition.

Conclusion

In the light of the above, where non-final and non-conclusive Office decisions are in issue, right holders and third parties must conduct a far more careful and diligent assessment. Statements, commercial assertions or legal applications made on the basis of such decisions give rise not only to legal liability but also to ethical responsibility. It is of great importance that statements concerning Office decisions should not be contrary to the truth or misleading in nature.

Any statement expressed on the basis of an industrial property decision that is not yet final and conclusive may constitute unfair competition as against the other party. That gives rise to liability in private law and may also bring into play criminal sanctions for the offence of unfair competition under the relevant legislation.

The safe course in practice is to await the expiry of the two-month period for bringing an action following notification of a Board decision, or the conclusion of any annulment action brought, and to use, in all commercial communications during that period, expressions that accurately reflect the legal status of the decision. Failure to observe the distinction between final and conclusive, particularly in notifications to support institutions, business partners and customers, may cause commercial harm that is difficult to remedy.

For that reason, both holders of industrial property rights and the persons, institutions and bodies carrying out transactions in relation to those rights must assess with care the finality status of the decision before making any statement, assertion or transaction. Failure to act prudently in areas of legal uncertainty may cause irreparable harm to commercial reputation, consumer safety and the competitive order.

Bibliography

  • Turkish Commercial Code No. 6102, Official Gazette 14.02.2011, No. 27846
  • Code of Civil Procedure No. 6100, Official Gazette 04.02.2011, No. 27836
  • Industrial Property Code No. 6769, Official Gazette 10.01.2017, No. 29944
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  • Teoman, Ö., Ülgen, H., Helvacı, M. et al., Ticari İşletme Hukuku, 1st Edition, Istanbul, 2006, p. 458
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  • Coruk, İ., Kötüleme Yoluyla Haksız Rekabet, Istanbul University, 2024
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