Passing Off

Also known as: Confusion, Imitation, Trade Dress Infringement, Get-Up Imitation, İltibas, TCC Article 55(1)(a)(4)

In short

The use of signs, packaging, appearance or other measures likely to cause confusion with another's goods, work products, activities or business.

Passing off (iltibas) occurs where a business presents its products or business in a way likely to be confused with another’s. Under TCC Article 55(1)(a)(4), taking measures that cause confusion with another’s goods, work products, activities or business is unfair competition.

Means of Causing Confusion

Unregistered signs, logos or product names
Packaging design, colour scheme and labels
Product shape and overall appearance (trade dress)
Shop design and corporate identity elements
Trade names, business names or domain names

Elements

The imitated element must be distinctive or well known enough to call a particular business to mind
The measure must be likely to cause confusion among average customers
Fault is not required, but it is required for damages

Relationship with Trademark Rights

For registered marks, protection derives from the Industrial Property Law and the rules on trademark infringement apply. The passing-off prohibition provides complementary protection where there is no registration or the registration does not cover the situation. A product that copies a competitor’s packaging exactly may constitute passing off even under a different brand. For registered protection of product appearance see Industrial Design.

Remedies

Unfair competition claims (declaration, injunction, removal, damages), interim injunctions and, where intentional, criminal sanctions upon complaint (TCC Article 62). Dated evidence of the imitated element’s market recognition and side-by-side comparisons are decisive.

Frequently Asked Questions

Can an unregistered packaging design be protected against passing off?

Yes. The prohibition does not depend on registration. If packaging, a colour scheme or a product's appearance has become associated with a particular business, use that imitates it and causes confusion is unfair competition.

Must consumers actually have been misled?

No. It is enough that the measure is likely to cause confusion. Evidence of actual confusion strengthens the claim.

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