A Landmark Decision At The Crossroads Of IP And Competition Law: Turkish Competition Authority's Tetra Pak Decision

The Turkish Competition Authority ("TCA") has recently published its long-awaited reasoned decision imposing an administrative fine approx. EUR 2.7 million (TRY 131 million) on Tetra Laval Holding & Finance SA ("TLHF") and its Turkish affiliate Tetra Pak Paketleme Sanayi ve Ticaret Ltd. Şti. ("Tetra Pak Turkey" (together "Tetra Pak") for abuse of dominant position in the markets for "production and sale of aseptic liquid food carton packaging filling machines" and "production and sale of aseptic liquid food carton packaging".

The decision is groundbreaking, as it marks the first time in Türkiye that the TCA has ordered an undertaking to relinquish a registered 3D shape trademark and a design right, and to withdraw pending 3D trademark applications, finding that the accumulation and enforcement of these rights combined with surrounding conduct amounted to an infringement of Article 6 of Act No. 4054 on Protection of Competition ("Act No. 4054"), which is akin to Article 102 of the TFEU.

This article summarises the key remarks in the decision.

Background

The investigation commenced upon a complaint filed by Poşetsan, a domestic manufacturer of packaging products. The complainant alleged that Tetra Pak had been pursuing a long-term strategy to monopolise the aseptic liquid food packaging sector through the accumulation and enforcement of 3D shape trademarks and design rights, contractual practices linked to its filling machines, and legal threats aimed at discouraging rival production. The TCA launched an investigation in December 2022.

The case also sits at the intersection of competition law and Industrial Property Law (Act No. 6769), as the contested rights derive from the trademark and design registration system.

Allegations

According to Poşetsan's complaint and the evidence later collected by the TCA, Tetra Pak allegedly:

• Technically tied the use of its aseptic filling machines to specific packaging shapes and sizes compatible only with its own products.
• Leveraged shape trademark registrations and design rights - not only existing registrations but also multiple alternative, overlapping 3D trademark applications - to create a de facto exclusive domain over prism-shaped aseptic carton packaging.
• Used legal warnings, infringement letters, customer communications, and contractual clauses to deter customers from sourcing compatible packaging from alternative suppliers.
• Sought to force a third party to withdraw a trademark application relating to a similar packaging shape.
• Implemented a global exclusionary strategy, allegedly consistent with conduct previously sanctioned by the European Commission and the Chinese Competition Authority.

Tetra Pak denied all allegations, arguing that its trademarks and designs constitute valid intellectual property rights, that the relevant 3D mark had been upheld as distinctive by the Turkish courts, and that its enforcement actions remained squarely within the lawful exercise of IP rights.

Assessment of the TCA

Determination of Dominance

The TCA concluded that Tetra Pak holds a dominant position in both relevant markets: i) "production and sale of aseptic liquid food carton packaging filling machines" and ii) "production and sale of aseptic liquid food carton packaging".

These findings relied on high switching costs, technological dependence between machines and packaging, and substantial barriers to entry. The TCA also relied on structural indicators such as the extremely low annual sales volume in the upstream market; only three or four aseptic filling machines are typically sold in Turkey each year, the majority supplied by Tetra Pak, which underscores the market power of incumbents

Tying Through the Use and Enforcement of IP Rights

A central element of the TCA's assessment is its finding that Tetra Pak used its 3D shape trademarks and design rights - notably trademark No. 2014/54843 (the bare prism shape) and design No. 2013/08197 - in a manner that exceeded the legitimate scope of IP protection and effectively reproduced the market-foreclosing effects of de facto tying. Unlike patents, which confer time-limited exclusivity, shape trademarks can be renewed indefinitely, which in the TCA's view allows them to create a potentially perpetual barrier to entry when invoked to prevent competitors from manufacturing a particular packaging shape. This structural feature of trademark law played a significant role in the TCA's conclusion that the rights at issue could operate as a long-lasting mechanism of exclusion.

Tetra Pak pursued multiple overlapping 3D trademark applications covering variations of the prism form, which the TCA interpreted as an attempt to cover all conceivable versions of prism shaped cartons. Internal correspondence indicated an intention to prevent third party production and ensure customers perceived Prisma packaging as producible only by Tetra Pak. Contractual provisions linking machine warranties, trademark usage and technical data sharing to the use of Tetra sourced packaging further reinforced this dependence.

Customer warnings, draft infringement letters and enforcement plans communicated that prisma shaped cartons could not lawfully be manufactured by competitors. The TCA viewed these communications as a substitute for an explicit tying obligation. Taken together, these actions created a foreclosure effect equivalent to tying, even though the mechanism operated through IP enforcement rather than through contractual or technical restrictions.

Fraud Against Law (Fraus legis facta) - Using IP rights as a vehicle for exclusion

In a novel and controversial step, the TCA characterised Tetra Pak's conduct as "fraud against the law". The TCA found that although the acquisition of 3D shape trademarks and design rights is formally lawful, these rights were used to obtain a result that competition law seeks to prevent.

The bare prism shaped trademark (No. 2014/54843) had been registered only after the Turkish Patent and Trademark Office rejected it for lack of distinctiveness and the Re Examination Board upheld that rejection, before the first instance court overturned both decisions and the Court of Cassation affirmed the judgment, leading to registration. The TCA acknowledged this judicial history yet expressly distanced itself from the courts' assessment, arguing that civil courts examined the mark solely from an IP law perspective, whereas the competition investigation revealed market structure, dominance and exclusionary effects that courts had not considered. The Authority emphasised that evidence before the TCA could fundamentally alter the earlier judicial assessment.

Accordingly, the TCA concluded that the appropriate sanction was to remove the benefit derived from the rights obtained and enforced through this strategy.

Defences Raised by Tetra Pak

During the investigation, TLHF and Tetra Pak Turkey submitted extensive procedural and substantive defences.

With respect to the trademark rights, TLHF argued that it had been authorised by the Tetra Pak group entity to register trademarks in Türkiye and to conduct legal actions in line with group instructions, and that it did not carry out any commercial or operational activity in Türkiye. TLHF submitted that the allegations could not be attributed to it, as its role was limited to holding and protecting intellectual property rights. It emphasised that the Tetra Prisma trademark had been registered following judicial review and had become final, that TLHF was the lawful rights holder of the relevant trademarks, that there was no licence relationship between TLHF and Tetra Pak Turkey, and that the registration and enforcement of trademark rights could not in itself constitute a competition law infringement.

Tetra Pak Turkey raised procedural objections, submitting that the investigation notice failed to sufficiently specify the alleged infringement, improperly shifted the burden of proof onto the undertaking, and relied on confidential information in a manner that prevented the effective exercise of defence rights.

On the substance, Tetra Pak Turkey contested the relevant market definition. It argued that packaging materials such as carton, plastic, glass and metal are substitutable, that switching costs between materials and formats are low, and that packaging shape does not affect the functionality of filling machines. It further maintained that aseptic filling machines can operate with different packaging shapes and that alternative formats are substitutable with prism shaped packaging.

Tetra Pak Turkey also challenged the dominance assessment, arguing that the relevant markets had been defined too narrowly, its market shares had declined in recent years, entry and expansion barriers were limited, and large buyers possessed significant countervailing bargaining power.

Finally, Tetra Pak Turkey denied any abusive conduct,arguing that Tetra Prisma Aseptic packaging is an innovative product and that trademark protection serves to incentivise innovation. It maintained that the mere ownership or lawful enforcement of intellectual property rights cannot amount to abuse. It was further submitted that prism shaped packaging accounted for only a limited share of total sales, that customers continued to source packaging from competing suppliers, that demand for prism packaging had declined over time, and that rival producers had increased their market shares. On this basis, the undertakings maintained that no exclusionary effects had arisen and that Article 6 of the Competition Act (akin to Article 102 TFEU) had not been infringed.

Fine and Remedies

The TCA imposed a combination of structural and behavioural remedies - an unusually far-reaching package for an abuse of dominance case involving intellectual property rights. In addition to an administrative fine of TRY 131 million, the TCA ordered the withdrawal of certain pending three dimensional trademark applications and the abandonment of specific registered trademark and design rights that it considered central to the exclusionary strategy. It is also noteworthy that two Board members dissented, expressing concern that requiring an undertaking to give up existing IP rights and withdraw pending applications could discourage innovation, undermine the core purposes of intellectual property protection and effectively penalise the lawful acquisition of registered rights. The dissenting members also questioned whether the prism shaped packaging covered by the contested trademarks could realistically be regarded as indispensable or capable of foreclosing the market, noting that its share within the broader packaging market was limited and that customers could technically switch suppliers through kit adaptations. They further criticised the majority's de facto tying assessment for not being supported by sufficiently detailed empirical evidence demonstrating actual exclusionary effects.

Remarkably, the case handlers (rapporteurs) had also recommended a no-infringement finding, despite having concluded that Tetra Pak was dominant in both relevant markets. It is relatively rare in TCA practice for the Board to depart so significantly from the case handlers' view, underscoring the contentious nature of the analysis and the novelty of the remedies imposed.

Why This Decision Matters?

This case is a milestone in the interaction between competition law and intellectual property in Türkiye. The TCA's intervention goes beyond scrutinising the use of IP rights and directly questions the existence of specific shape trademarks and designs. Such structural remedies - requiring the withdrawal of registered rights - are unprecedented in Turkish enforcement and remain rare even in EU practice, where invalidation of IP rights is typically left to specialised courts.

The decision also signals the TCA's willingness to:

• treat shape trademark portfolios and multi-variant filings as potential instruments of foreclosure,
• examine the global enforcement history of multinational undertakings when assessing intent,
• and deploy civil-law concepts such as fraud against the law to neutralise IP rights that, in the TCA's view, operate as vehicles for exclusion.

It thus stands as a clear statement that trademark and design strategies cannot be insulated from competition enforcement, particularly in markets characterised by high switching costs and technological dependence.

Conclusion

The Tetra Pak decision marks a turning point in Turkish competition enforcement and is likely to influence how undertakings structure and enforce their trademark and design portfolios in the future. By requiring the withdrawal of both registered and pending IP rights, the TCA broadened the scope of abuse of dominance to encompass not only exclusionary conduct but also the strategic accumulation of shape based rights capable of restricting market access.

At the same time, the ruling raises fundamental questions about the limits of administrative authority, the relationship between the TCA and the civil courts, particularly given the Court of Cassation's earlier finding that the trademark did not lead to monopolisation, and the delicate balance between incentivising innovation and preventing market foreclosure. A further point of controversy concerns whether the TCA can directly intervene in intellectual property rights that derive their legal basis from a separate statute. Industrial property rights are a form of property right and, under Turkish law, may only be restricted or invalidated through procedures expressly set out in legislation and implemented by authorities specifically empowered to do so. This raises the question of whether the Competition Authority possesses the competence to impose remedies that effectively require the abandonment or removal of trademark and design rights.

The decision also presents practical uncertainties. Should the decision be annulled by the courts, it remains unclear whether withdrawn applications or abandoned registrations would automatically revive and, if so, how such reinstatement would interact with intervening third party rights or procedural deadlines under industrial property law.

As the case proceeds to judicial review, Turkish courts will have the opportunity to determine whether the TCA has drawn an appropriately calibrated line or whether this decision represents an overextension into a legal domain traditionally reserved for industrial property adjudication and statutory procedures

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.