When 3D Trademarks and Designs Become an Antitrust Problem: The Turkish Competition Authority’s Controversial Tetra Laval Decision

Executive Summary

- Turkish Competition Authority’s (TCA) treated the mere accumulation of IP rights especially 3D shape trademarks and design registrations as capable of producing exclusionary effects and supporting a finding of abuse of dominance.

- IP portfolio as anti-competitive foreclosure: The Authority viewed overlapping protection (registered rights + pending applications) over a widely used carton shape as a structural barrier to entry, creating legal uncertainty for rivals even without active enforcement.

- Dissenting Opinions: Two Board members dissented, arguing that IP ownership alone is not abusive, foreclosure was not demonstrated (the shape was not indispensable), and ordering withdrawal of registered rights is disproportionate and may discourage innovation.

Background

The Turkish Competition Authority’s 2024 Tetra Laval decision marks a significant development in the relationship between industrial property rights and competition law. For the first time in Turkey, the Authority concluded that the existence and accumulation of certain industrial property rights—particularly 3D trademarks and industrial design registrations—may themselves produce exclusionary effects and amount to an abuse of dominance.

The proceedings were initiated following a complaint by Poşetsan Ambalaj Sanayi ve Ticaret A.Ş. (“Poşetsan”). Poşetsan alleged that Tetra Laval and Tetra Pak held a dominant position both in the market for aseptic liquid food filling machines and in the market for prism-shaped carton packages used in those machines. According to the complaint, the companies reinforced that dominance through an extensive portfolio of 3D trademarks and design registrations, which allegedly created barriers to entry and resulted in an unlawful tying effect.

The Authority found that Tetra Laval held various industrial property rights, including Turkish trademark registration No. 2014/54843, several pending 3D shape-mark applications, and design registration No. 2013/08197, all covering carton package shapes widely used in the liquid food sector. This multi-layered portfolio formed the basis of the Authority’s assessment of structural foreclosure.

According to the Authority, the overlapping and shape-focused nature of this IP portfolio created a legal barrier to entry. Even absent active enforcement, the presence of multiple shape-based rights generated uncertainty for competitors, discouraging them from offering compatible packaging solutions. This effect was amplified by the close link between the filling machine and packaging markets: customers using Tetra Pak machines typically require packaging compatible with those machines, and the IP portfolio effectively reinforced that dependency.

The Authority therefore treated the IP strategy not as ordinary brand protection, but as a foreclosure mechanism strengthening dominance across complementary markets. On this basis, it concluded that maintaining and expanding these IP rights constituted an abuse of dominance and ordered the withdrawal (or surrender) of the relevant trademark and design rights, alongside imposing a significant fine. The decision may be appealed before the Ankara Administrative Court.

Dissenting opinions

The decision was adopted by majority vote, while two members of the six-member Competition Board issued dissenting opinions. Their main arguments—particularly in relation to trademarks and designs—may be summarized as follows:

Registration and ownership of IP rights are not, by themselves, abusive. The dissenters argue that merely obtaining and holding an IP right (especially a 3D shape trademark) cannot automatically be treated as an abuse of dominance. In their view, a competition-law infringement requires additional exclusionary conduct or clear market-foreclosure effects beyond the fact of registration.

The 3D trademark has already been validated by the competent IP authorities and courts. One dissent emphasizes that the Tetra Prisma Aseptic shape was found original/distinctive and suitable for trademark protection. Following the Turkish Patent and Trademark Office’s refusal, the registration was ultimately confirmed by the Ankara 2nd Intellectual and Industrial Property Rights Court and the Court of Cassation (11th Civil Chamber). Accordingly, the dissent considers the legal requirements for trademark protection to have been conclusively satisfied.

Competition-law intervention in IP must be exceptional and should not undermine the “essence” of the right. While accepting in principle that IP rights may be constrained by competition law, the dissent refers to EU case law (including Magill and Volvo v. Veng) to underline that such intervention is exceptional and subject to strict conditions. The dissenters warn that overbroad intervention may impair the core functions of trademark and design rights.

No market foreclosure is demonstrated: the protected shape is not indispensable. A central factual position is that the market was not closed. The dissent notes that the share of Tetra Prisma Aseptik within total carton packaging sales is described as low (the figures are redacted in the text as %(…)), and that a substantial portion of packaging purchases concerns alternative cartons outside trademark protection. This suggests that the protected shape is not indispensable for competing in the packaging market and that meaningful alternatives exist.

The remedy is disproportionate and may have negative impact on innovation. The dissent strongly objects to requiring the undertaking to:

- withdraw the registered trademark No. 2014/54843,

- withdraw the registered design No. 2013/08197, and

- withdraw pending 3D trademark applications (e.g., 2022/119380, 2022/119373, 2022/119376).

They argue that such measures risk discouraging innovation and penalize a company for having developed and lawfully registered an “innovative” product configuration.

Comment

Overall, the Tetra Laval decision represents a bold step in Turkish competition enforcement, signalling that even passive accumulation of industrial property rights may be scrutinized where it contributes to structural foreclosure in highly concentrated, interdependent markets.

From a comparative perspective, the reasoning is partly aligned with EU competition law principles. EU case law recognizes that IP rights can be misused where they serve to artificially consolidate market power, but typically only in exceptional circumstances. The Turkish approach is more interventionist, as it treats the mere registration and existence of shape-based IP rights as potentially abusive even in the absence of deceptive filings or active enforcement.

A further dimension concerns the right to property under human-rights law. Registered trademarks and designs qualify as “possessions” under Article 1 of Protocol No. 1 of the ECHR and are similarly protected by the Turkish Constitution. While requiring withdrawal of specific IP rights constitutes an interference with property, such interference may be lawful if it pursues a legitimate public interest and is necessary and proportionate here, the protection of competition and prevention of market foreclosure. That said, the decision raises proportionality questions because it targets IP rights that were not acquired through deception.

An important legal question is whether the Competition Board has the statutory competence to order the withdrawal of registered trademark and design rights to the right holder. Under the Industrial Property Code, invalidation or cancellation of registered rights is generally governed by the mechanisms and competent authorities designated therein (notably, the Turkish Patent and Trademark Office and the IP courts, depending on the remedy sought). Against this backdrop, the Board’s remedy—requiring the rights-holder to withdraw registered rights—may be criticized as exceeding the boundaries of competition-law enforcement and as potentially conflicting with the procedural architecture of the IP regime.

Moreover, the decision is subject to appeal. It will be still an open question as to whether Tetra Laval will be able to revive its withdrawn rights in case the decision of the Competition Authority decision is eventually reversed.