Cross-Border Unfair Competition in Turkey: MÖHUK Article 37, Affected Market and Business-Interest Claims

1. Article 37 protects the competitive market rather than the location of the wrongdoer

Unfair competition can be planned in one country and produce its economic effect in another. A foreign company can publish a campaign from abroad that targets Turkish customers, diverts business from a Turkish competitor and changes competitive conditions in Türkiye. If conflict rules focused only on where the advertisement was uploaded, the law governing competition could be disconnected from the market actually harmed.

Article 37 therefore follows the directly affected market. The rule aligns the governing law with the competitive environment in which customers, competitors and commercial behaviour are actually influenced.

This market principle should be identified before the court examines substantive Turkish Commercial Code unfair-competition rules or the foreign equivalent.

2. Unfair competition is broader than false advertising

Under Turkish commercial law, unfair competition can arise from misleading or disparaging statements, inducing contractual breach, exploiting another’s work product, misuse of trade secrets, deceptive pricing practices, non-compliant general terms and other conduct contrary to honest competition.

International disputes can involve online marketplaces, influencer promotions, fake reviews, copied product presentation, unauthorised use of confidential supplier data, comparative campaigns or coordinated poaching of customers.

The conflict-of-laws analysis does not itself decide whether conduct is unfair. Article 37 first selects the law that will answer that substantive question.

3. The market must be directly affected

The statutory phrase is not satisfied merely because a website can technically be opened from a country. The court should ask whether the conduct was directed to or actually capable of altering competition in that market.

Relevant factors include the language and currency of advertising, shipping destinations, customer base, local distributors, domain structure, paid-ad targeting, market share, sales volume and whether the claimant and defendant compete for customers there.

A global website with no Turkish targeting and no Turkish sales can present a weaker Turkish-market connection than a foreign site using Turkish language, Turkish-lira pricing and delivery throughout Türkiye.

4. Turkish law governs when Türkiye is the directly affected market

If the unfair conduct directly affects competitive conditions in Türkiye, Article 37 points to Turkish law. The defendant’s foreign incorporation does not prevent that result.

A German seller that directs misleading Turkish-language advertisements to consumers in Türkiye can therefore face Turkish substantive unfair-competition law where the Turkish market is directly affected. The same logic can apply to a foreign platform operator or distributor depending on its own conduct.

This does not automatically establish Turkish court jurisdiction. Applicable law and forum remain separate legal questions.

5. E-commerce makes market targeting more important than server location

Digital commerce frequently involves servers and corporate entities spread across several jurisdictions. Server location alone is a poor indicator of competitive effect.

Courts should examine where customers are being solicited and where competitive decisions are influenced. Search-engine advertising targeted at Turkish users, Turkish social-media campaigns, marketplace listings for delivery into Türkiye and Turkish-language customer support all strengthen the Turkish-market connection.

Geo-blocking, absence of local delivery and explicit exclusion of Turkish customers can point the other way, although actual sales evidence remains important.

6. Comparative advertising can trigger Article 37 where comparison affects a national market

A business can lawfully compare products under certain conditions, but misleading, denigrating or confusing comparisons can become unfair competition under the governing substantive law.

Where a foreign campaign directly compares a Turkish brand and targets Turkish customers, the Turkish market can be the directly affected market. The court then applies Turkish substantive rules to determine whether the comparison is permissible.

Evidence should preserve the advertisement exactly as shown to Turkish users, including date, platform, targeting, language and linked landing pages.

7. Misleading statements require proof of commercial context and market effect

Not every inaccurate statement made by a company is an unfair-competition act. The statement must be assessed within the commercial context and governing law.

Claims about price, origin, certification, environmental characteristics, professional qualifications, customer numbers or competitor performance can distort market decisions when false or materially incomplete.

Cross-border claimants should capture the representation and demonstrate how it reached the relevant market rather than relying only on an internal screenshot from another country.

8. Trade-secret misuse can fall under Article 37 but may also create contract and IP claims

A former distributor or employee may use confidential pricing, customer lists, technical information or supplier terms in a way alleged to be unfair competition. The market rule can govern the unfair-competition claim, while confidentiality agreements or employment duties can be governed by different conflict rules.

For this reason, a trade-secret lawsuit should classify each claim separately. A breach of NDA can follow Article 24 or Article 28; an employee duty can follow Article 27; the market-distorting use of the information can follow Article 37.

Combining every theory under one governing law can produce legal error.

9. Article 37(2) applies where only the injured enterprise’s own business interests are affected

The second paragraph creates a focused exception. If the unfair conduct does not directly affect the market but exclusively infringes interests relating to one enterprise, the law of that enterprise’s business establishment applies.

This can be relevant to targeted misconduct between two firms that does not materially alter competitive conditions for the broader market. The distinction between market harm and enterprise-only harm is therefore substantive to conflict analysis.

The claimant should explain why the conduct is confined to its own business interest if relying on Article 37(2).

10. The injured enterprise’s business establishment must be identified accurately

Multinational groups often have parent companies, subsidiaries and branches in several countries. Article 37(2) asks where the injured enterprise has its business establishment, not where the ultimate shareholder lives.

Trade-register records, contracts, staff, management activity and the commercial operation affected by the conduct help identify the relevant establishment.

A Turkish subsidiary cannot automatically invoke the law of its foreign parent merely because they share a brand.

11. Competitor status and market overlap should be shown with evidence

Where a claimant says a market has been harmed, it should establish the competitive relationship and market affected. Product category, territory, customer segment and distribution channel matter.

Two companies may compete globally but not in the same Turkish segment. Conversely, companies in adjacent sectors can compete for the same procurement contracts or digital customers.

Market evidence can include sales data, tender participation, marketplace rankings, advertising keywords and customer correspondence.

12. Unfair competition can protect consumers and market institutions, not only competitors

Turkish unfair-competition law recognises broader market interests. Consumers, professional organisations and other authorised actors can have remedies in circumstances defined by substantive law.

The conflict rule remains tied to the market directly affected. A misleading foreign campaign aimed at Turkish consumers can therefore be governed by Turkish unfair-competition law even if no single Turkish competitor proves a large individual loss.

Consumer-protection law can apply alongside unfair-competition law where the conduct also violates consumer statutes.

13. The governing law determines the available unfair-competition remedies

Possible remedies can include declaration of unlawfulness, injunction, cessation, correction of misleading statements, removal of the effects of unfair conduct, damages and in some systems publication of the judgment.

Turkish Commercial Code remedies depend on standing, fault and the particular claim. The court should not import a remedy from foreign law while applying Turkish law to liability.

Urgent provisional measures can be particularly important where a campaign continues online and causes daily market harm.

14. Preserve market-specific digital evidence

Online content can change quickly. Claimants should preserve dated screenshots, URLs, platform identifiers, advertising-library records, search results, customer messages and, where possible, evidence showing Turkish targeting.

A screenshot alone may not prove who published the content. Platform records, domain ownership, payment data and corporate accounts can be necessary to identify the defendant.

Turkish civil procedure provides evidence-preservation mechanisms when there is a risk that proof will disappear.

15. Article 37 chooses law; it does not itself create Turkish jurisdiction

Turkish international jurisdiction is generally determined under MÖHUK Article 40 through domestic territorial-jurisdiction rules. The place of damage, defendant location and special commercial rules can become relevant depending on the claim.

A Turkish court can have jurisdiction over a market-affecting foreign defendant and apply Turkish law, but the jurisdiction analysis must be stated separately.

Service abroad and eventual enforcement of the Turkish judgment should be considered before filing.

16. Unfair competition under Article 37 is different from antitrust under Article 38

Article 37 concerns dishonest competitive conduct. Article 38 concerns restrictions of competition such as anticompetitive agreements, abuses or other market restraints.

The same facts can sometimes raise both issues, but the conflict rules and substantive statutes differ. A misleading advertisement is typically an unfair-competition issue; a cartel allocating Turkish customers is an antitrust issue.

Our separate Article 38 guide addresses competition restrictions.

17. Contract remedies can coexist with Article 37 claims

Distributor, franchise, agency and employment relationships often generate both contractual and unfair-competition allegations. Termination of a distributor agreement may lead to use of confidential customer data or misleading claims about continuing authorised status.

The contract can be governed by one law under Article 24 while the market conduct is governed by Article 37. The claimant should plead the legal bases separately.

This separation also helps the court apply the correct limitation periods and remedies.

Conclusion

MÖHUK Article 37 follows the market actually harmed by unfair competition. When conduct directly affects the Turkish market, Turkish unfair-competition law governs regardless of where the defendant is incorporated or where online content was uploaded. If the misconduct affects only one enterprise’s internal business interests, Article 37(2) instead points to the law of that enterprise’s business establishment. Proper classification between market harm, enterprise-only harm, contract claims and antitrust issues is essential.