At the Intersection of Competition Law and Intellectual Property Law: The Turkish Competition Board’s Tetra Pak Decision

Parties to the Investigation, Relevant Market, and Assessment of Dominance

Tetra Laval Holding & Finance SA (“TLHF”) operates within the Tetra Laval Group, which is active in the production, packaging, and distribution of food and beverages. In Turkey, TLHF conducts its operations through Tetra Pak Paketleme Sanayi ve Ticaret Ltd. Şti. (“Tetra Pak Türkiye”), which develops and manufactures packaging and processing systems for food products and provides related technical services. During the investigation, TLHF argued that it should not be considered a “party” to the proceedings, as it had no commercial activities or turnover in Turkey. However, the Board concluded, based on Articles 2 and 3 of Law No. 4054 on the Protection of Competition (“Law No. 4054”), that TLHF and Tetra Pak Türkiye formed part of the same economic unit. TLHF further contended that the trademarks were owned by Tetra Pak International SA (“TPI”), and that TLHF acted merely as the legal holder of the marks, registering them on behalf of and at the risk of TPI. The Board, taking into account intragroup licensing agreements, determined that the economic ownership of the IP rights rested with TPI, while the actual commercial use was carried out by Tetra Pak Türkiye. Accordingly, it concluded that TLHF also qualified as a party to the investigation.

Tetra Pak Türkiye is active in the production and sale of aseptic liquid food filling machines and aseptic liquid food carton packaging. Aseptic packaging refers to a process in which products are sterilized through heat treatment, cooled in a sterile environment, and filled into sterile packages, allowing them to remain stable for up to six months without refrigeration, provided the package remains unopened. Aseptic carton packaging is widely used for products such as milk, fruit juice, cream, and sauces. The aseptic filling machines, on the other hand, vary depending on the type of packaging material used (plastic, carton, glass, or tin) and are compatible only with packages of specific materials and dimensions.

In the decision, the relevant product markets were defined as the “market for the production and sale of aseptic liquid food carton filling machines” and the “market for the production and sale of aseptic liquid food carton packaging”, while the relevant geographic market was defined as Turkey.

The Board found that Tetra Pak Türkiye held high and stable market shares in both the aseptic filling machine market and the aseptic carton packaging market compared to its competitors. Considering the significant barriers to entry and expansion and the limited countervailing buyer power, the Board concluded that Tetra Pak Türkiye held a dominant position in both markets. According to the Board, intellectual property rights, the high R&D and know-how requirements, and substantial financing and marketing costs constituted important barriers to market entry. Furthermore, the economic lifetime of the machines (15–25 years) and the limited annual sales volume (approximately 3–4 units) were found to practically restrict new entries into the market. In the packaging market, the Board highlighted that Tetra Pak Türkiye’s strong brand recognition, broad product portfolio, and integration of machinery and after-sales services reinforced its market power. In addition, the 25% customs duty applied to food-contact packaging materials was deemed to discourage imports, thereby strengthening the domestic market position. With regard to buyer power, the Board noted that due to the high cost and long lifespan of filling machines, customers rarely replaced their equipment, which meant that no effective buyer power existed in the machine market. In the packaging market, while switching suppliers was technically possible subject to compatibility requirements, the limited availability of alternatives in comparison to Tetra Pak Türkiye’s product diversity and production capacity rendered buyer power insignificant.

At the Intersection of Competition and Intellectual Property Law: Finding of Infringement

In a cease-and-desist notice dated 4 February 2021, TLHF requested that Poşetsan halt all prism-shaped packaging production, invoking its trademark rights over the “Tetra Prisma Ambalaj” mark. In response, Poşetsan filed a complaint with the TCA, alleging a violation of Article 6 of Law No. 4054 (abuse of dominance). The complaint allaged that Tetra Pak Türkiye held a dominant position in the liquid food filling machine market; that these machines could only fill packages of specific shapes and dimensions; and that customers who purchased “Tetra Prisma Aseptic” machines were effectively forced to procure the corresponding prism-shaped packaging from the same undertaking. A dawn raid conducted at Tetra Pak Türkiye’s Istanbul office revealed internal communications emphasizing concepts such as “total solution package”, “customer loyalty”, and “system dependency”. The findings also showed that packaging sales were structured together with machine leasing or maintenance agreements, and that discounts were granted exclusively to customers using Tetra Pak packaging. The Board regarded these documents as crucial evidence supporting the tying allegations. Moreover, sales and leasing contracts for the filling machines contained provisions stipulating that the machines would operate only with Tetra Pak packaging, and that using alternative packaging would void the warranty. The Board concluded that these provisions created both technical and contractual dependency, reinforcing the tying effect in the market.

The Board conducted its tying analysis within the framework of Article 6 of Law No. 4054 and the Guidelines on Vertical Agreements, examining whether the tying product (filling machine) and the tied product (aseptic carton packaging) constituted distinct products from an economic perspective, and whether the conduct had a foreclosure effect on competitors’ access to the market.

Tetra Pak Türkiye argued that “Tetra Prisma Aseptic” was an innovative product, that its trademark registration served to encourage innovation, and that the exercise of an intellectual property right could not be considered an abuse of dominance. The company further contended that customers were able to source packaging from alternative suppliers, that the prism-shaped model represented only a small share of total sales, and that while its own market share declined between 2019 and 2021, competitors’ shares increased.

The Board concluded that the filling machines and packaging products constituted distinct products, thereby rendering the tying analysis applicable. Although the sales contracts did not contain an explicit tying clause, the registration and use of the trademark effectively produced the same result. The Board found that the 3D trademarks registered under TLHF’s name (Nos. 2014/54843 and 2022/119379), as well as those pending registration, had been repeatedly extended through new filings in Turkey and abroad. Moreover, notifications sent to competitors and customers were found to prohibit all forms of production and use of prism-shaped packaging beyond the scope of the protection conferred by the trademark. Accordingly, the Board held that the trademark right had been used beyond its legitimate protective purpose, thereby becoming a tool to restrict competitors’ commercial activities.

The Board emphasized that the 3D shape trademark registered under No. 2014/54843 posed a structural risk to competition. The trademark application had initially been rejected by the Turkish Patent and Trademark Office (“Turkish Patent”) on the grounds that it lacked distinctiveness. However, the Ankara 2^nd Civil Court for Intellectual and Industrial Property Rights ruled that the mark was distinctive and did not lead to product monopolization, ordering its registration. This judgment was subsequently upheld by the 11^th Civil Chamber of the Court of Cassation in its decision dated 20 August 2018 (E. 2016/9259, K. 2018/2131). The TCB, however, assessed that despite being registered by virtue of a court decision, the mark had de facto monopolizing effects in the relevant market. According to the Board, shape trademarks that grant indefinite protection—as opposed to time-limited patent protection—disproportionately restrict public welfare and, in this case, the right in question was used as a means to block competitors’ production and sales activities.

The TCB further noted that even in the Ankara 2^nd Civil Court for Intellectual and Industrial Property Rights’ decision granting registration, the risk of monopolization had been explicitly acknowledged. In light of current market conditions, the TCB found that, given Tetra Pak Türkiye’s high market shares in both the filling machine and packaging markets, the increase in the share of prism-shaped packaging within total aseptic carton sales had turned the trademark into a factor reinforcing its market dominance. Moreover, the indefinite renewability of the trademark protection (in ten-year periods pursuant to the Industrial Property Law No. 6769) was considered by the Board to demonstrate that this monopolization risk had acquired a structural character.

The TCB emphasized that judicial decisions concerning the registration of industrial property rights are not binding from a competition law perspective, and that the Board is obliged to conduct an assessment focused on public interest and market effects in order to safeguard competition. Accordingly, the previous judicial findings that the shape was distinctive and did not lead to product monopolization do not preclude the competition law analysis regarding the market-foreclosing effects of the conduct.

The TCB underlined that undertakings in a dominant position bear a “special responsibility” and that the mere existence of an intellectual property right does not preclude an infringement assessment. If the exercise of such a right effectively prevents competitors from entering the market, it falls within the scope of Article 6 of Law No. 4054. The Board also noted that the low market share of the prism-shaped packaging was not decisive, since: (i) the rights in question reserved a closed sub-segment of the market exclusively for the dominant undertaking; (ii) format switching entails significant costs; and (iii) warranty and liability clauses in the contracts discourage sourcing from alternative suppliers.

The Board noted that the conduct of the Tetra Pak Group had previously been the subject of several decisions by different competition authorities. It emphasized that three decisions adopted by the European Commission and the Chinese State Administration for Industry and Commerce were particularly relevant for understanding Tetra Pak’s overall competitive strategy and could serve as guidance in the present investigation[3]. In light of the evidence obtained and international precedents, the Board concluded that Tetra Pak had used its intellectual property rights in a manner that excluded competitors from the market, and that these rights were established and exercised as a means of circumventing the law.

In conclusion, when the trademark rights, contractual provisions, and switching costs were assessed together, the Board found that a de facto tying effect emerged, even in the absence of an explicit tying clause in the contracts. The Board determined that the combined effect of trademark enforcement, warranty provisions, and technical switching costs created a “de facto tying” mechanism. It concluded that the 3D prism trademarks—registered or pending under TLHF’s name—together with Tetra Pak Türkiye’s contractual practices, produced anticompetitive effects, hindered competitors’ activities in the aseptic packaging market, and further strengthened Tetra Pak’s dominance. Accordingly, the use of trademark and design rights as instruments facilitating “de facto tying” was held to constitute an abuse of dominance. The Board also ruled that TLHF, being part of the same economic unit as Tetra Pak Türkiye, was jointly and severally liable for the infringement.

In this context, the Board imposed an administrative fine of TRY 130,889,523.70 on the single economic unit comprising TLHF and Tetra Pak Türkiye. In addition, the Board ordered the surrender of the registered 3D shape trademark No. 2014/54843 and the design right No. 2013/08197, as well as the withdrawal of the pending trademark applications Nos. 2022/119376 and 2022/119380, on the grounds that non-verbal shape marks of this kind could restrict all 3D prism-shaped packaging production in the market. By contrast, no action was taken regarding the applications Nos. 2022/119373 and 2022/119379, which contain the verbal element “TETRA PRISMA”, as the Board found no comparable foreclosure risk in their registration.

Focus of the Dissenting Opinions

The decision was adopted by a majority, with two dissenting opinions. Board Member Şükran Kodalak, dissenting from the majority, held that Tetra Pak’s conduct did not constitute an abuse of dominance under Article 6 of Law No. 4054. According to Kodalak, the “Tetra Prisma Aseptic” packaging shape, which lay at the heart of the investigation, had been found distinctive and original by the Turkish Patent and Trademark Office and the competent courts, and therefore should be regarded as a legitimate exercise of a trademark right.

Kodalak emphasized that the share of prism-shaped packaging covered by the trademark was very limited within the relevant product market, and that such packaging did not constitute an indispensable element for the market as a whole. Therefore, restrictions based on the trademark could not have a sufficiently widespread exclusionary effect to distort competition. She further noted that packaging formats could be switched through a “kit change”, meaning that buyers were not technically prevented from turning to alternative suppliers. In her view, the Board’s finding of “de facto tying” was not empirically substantiated in terms of the contractual provisions or the market effects of trademark enforcement. Kodalak cautioned that such an interpretation risks classifying the legitimate exercise of intellectual property rights as an infringement, thereby undermining the objective of protecting innovative products. She also argued that this aspect of the decision interferes with the essence of intellectual property rights and is incompatible with the goal of fostering innovation. Finally, Kodalak maintained that indirectly limiting the duration of IP protection through competition law would be inconsistent with the principles of legal certainty and legitimate expectations.

Board Member Berat Uzun, on the other hand, dissented from the imposition of an administrative fine on Tetra Pak and from the obligation to surrender the registered trademark and design rights. According to Uzun, while the case rapporteurs’ opinion had concluded that no infringement had occurred, the Board reversed this assessment without introducing any new evidence, thereby undermining the procedural foundations of the decision. Uzun also criticized the “correction decision” issued by the Board following the main decision, arguing that the amendment could not be regarded as a “clerical correction”, since it affected the substance of the decision, and was thus contrary to the principles of institutional consistency and legal certainty. He further contended that the Board majority reached an infringement finding without sufficiently engaging with the technical analyses provided by the case rapporteurs, who had initially reasoned that no violation existed.

Both members shared the view that the mere existence of an intellectual property right cannot, by itself, constitute a competition law infringement. A trademark right may only warrant intervention when it is exercised beyond its lawful boundaries and effectively eliminates competition. In this regard, the legitimate use of a registered trademark does not, in principle, amount to an infringement; any contrary interpretation would exceed the proper limits of competition law intervention.

According to the joint assessment of Kodalak and Uzun, the majority’s finding of “de facto tying” did not reach a sufficient evidentiary standard in terms of empirical basis and market effects analysis. They further argued that an intervention of this magnitude into the exercise of a trademark right disrupts the balance between public interest and property rights, thereby creating a precedent that could negatively affect innovation and investment incentives in the long term.

In conclusion, Kodalak and Uzun, the two dissenting members, defined the core of the debate not as the existence of intellectual property protection itself, but rather as the question of how to substantiate the concrete competitive effects arising from the exercise of such protection. While the Board majority considered that the combination of contractual provisions, technical switching costs, and trademark enforcement in practice resulted in de facto tying, the dissenting members argued that this finding did not meet the required standard of proof and amounted to an intervention exceeding the legitimate scope of competition law.

[1] Attorney Gülce Korkmaz Erdem is the external competition law consultant of Baş | Kaymaz Law Firm. After completing her master’s degree at Bilkent University, she is currently pursuing her doctoral studies in the field of competition law at the Faculty of Law of Lüneburg Leuphana University (Germany) as a PhD researcher with the scholarship of the Joachim Herz Foundation.

[2] TCB Decision dated dated 1 August 2024 and numbered 24-32/758-319. For the Board’s reasoned decision on the case, please see here (only available in Turkish).

[3] Tetra Pak I Decision: The Tetra Pak I case concerned Tetra Pak’s 1986 acquisition of the Liquipak Group and its subsequent exclusive use of sterilization technology licensed by BTG, which was found to constitute an abuse of dominance under Article 86 of the Treaty of Rome (now Article 102 TFEU). In its decision, the European Commission found that Tetra Pak held a 91.8 percent share of the Community market for aseptic filling machines, in which only one competitor, PKL, was active. The Commission noted that Tetra Pak’s technological superiority and exclusive access to BTG’s technology prevented competitors from entering the market. Given the mature structure of the milk market and the long economic life of filling machines, entry barriers were considered high. The acquisition was therefore deemed to have strengthened Tetra Pak’s existing dominance and eliminated potential competition. The Commission concluded that Tetra Pak had abused its dominant position in violation of Article 86 of the Treaty of Rome (Tetra Pak I – OJ (1988) L 272/27; [1988] 4 CMLR 881).

Tetra Pak II Decision: In its 1991 decision, the Commission again found that Tetra Pak had infringed Article 86 of the Treaty of Rome following a complaint filed by Elopak. The investigation revealed that Tetra Pak had included anti-competitive clauses in its contracts with customers, sold certain carton types at predatory prices, imposed unfair conditions in the supply of filling machines, and sold machines below cost. According to the Commission, Tetra Pak’s contracts required customers to use only Tetra Pak cartons in Tetra Pak machines and to obtain maintenance and spare parts exclusively from Tetra Pak, effectively tying customers to the company for the lifetime of the machines, foreclosing rivals, and abusing its dominant position. The Commission also observed that Tetra Pak’s integrated distribution system and patent policy made the carton market dependent on the machinery market, restricted both inter-brand and intra-brand competition, and segmented national markets through discriminatory pricing (Tetra Pak II – OJ (1992) L 72/1; [1992] 4 CMLR 551).

Tetra Pak Decision of Chinese State Administration for Industry and Commerce: In 2016, the State Administration for Industry and Commerce (SAIC) of the People’s Republic of China found that Tetra Pak held a dominant position in the Chinese markets for aseptic filling machines, technical services for such machines, and aseptic carton-packaging materials. Between 2009 and 2013, Tetra Pak’s market shares exceeded 60 percent in packaging materials, 80 percent in technical services, and 50 percent in filling machines. The SAIC determined that Tetra Pak had entered into exclusive agreements with raw-material suppliers limiting competitors’ access to paper, tied the sale of packaging materials to the provision of equipment and technical services, and implemented cumulative-volume and loyalty rebates that restricted competition. Tetra Pak was fined 667,724,176.88 RMB, corresponding to 7 percent of its 2011 sales (SAIC, Administrative Penalty Decision on Tetra Pak (Group), 2016).

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