From Tying to IP-Based Abuse: The Turkish Tetra Pak Decision in Context

Introduction: The Same Name, A Different Legal Trajectory

For the competition law community, the name Tetra Pak carries a particular historical resonance. In European competition law, it is associated with a landmark Article 102 case of the 1990s, in which contractual tying and predatory pricing were scrutinised in markets characterised by technological interdependence and structural dominance.

More than three decades later, the same corporate group has once again become the subject of a high-profile competition law decision, this time in Türkiye. Although adopted in 2024, the Turkish Competition Authority’s decision was publicly released on 17 October 2025 and immediately attracted attention due to both its subject matter and the intensity of the remedial measures imposed.1 While the case initially arose from allegations closely resembling classical tying, echoing, at least superficially, the logic of the EU proceedings, the Authority's analytical trajectory ultimately took a markedly different path.

The investigation was initiated in response to concerns that dominance in machinery markets was being leveraged to restrict competition in related packaging segments — concerns that, in industries shaped by technical compatibility and long-term commercial relationships, naturally invite a tying-based analysis. However, following the rapporteurs’ evaluation of the evidentiary record, the final infringement finding was not grounded in contractual tying. Instead, the Authority reframed the conduct as an abuse of dominance rooted in the strategic deployment of three-dimensional trademark and design rights.

More specifically, certain 3D prism-shaped registrations, particularly those lacking clearly legible word elements, were considered capable of producing exclusionary effects when combined with the undertaking’s dominant position and its enforcement strategy. On that basis, the Authority imposed an administrative fine of approximately TRY 131 million (approximately EUR 2.67 million, calculated on the basis of the EUR/TRY exchange rate on the date the decision was announced) and, more strikingly, required the undertaking to renounce specific registered IP rights and withdraw pending three-dimensional trademark applications within a defined timeframe.

The analytical significance of the decision lies not solely in the sanction imposed but in the conceptual move it embodies. A case that began with tying allegations was ultimately resolved through the lens of IP-based abuse, thereby shifting the legal inquiry from contractual coercion and foreclosure analysis to the boundaries of legitimate intellectual property enforcement under conditions of dominance. In doing so, the decision implicitly engages with a broader structural issue: how competition law should respond when concerns traditionally framed as tying intersect with, and perhaps migrate into, the domain of shape-based intellectual property protection.

A Brief Reminder: Tetra Pak in European Competition Law

In European competition law, Tetra Pak II became a reference point for the application of Article 102 TFEU to technologically linked products.2 The case concerned the supply of aseptic packaging machines and the cartons used with them for liquid food products. Although the products were functionally interconnected, the Commission and the EU Courts treated machinery and cartons as distinct products for the purposes of tying analysis. The central concern was how Tetra Pak structured its commercial relationships with customers. Purchasers or lessees of Tetra Pak machines were contractually bound, directly or indirectly, to use Tetra Pak cartons. The tying did not rely solely on technical compatibility; it was reinforced through contractual clauses, pricing structures, and supply conditions that made the use of alternative cartons commercially or legally impracticable. In other words, customers were not merely choosing bundled solutions in an integrated ecosystem; they were effectively constrained in their sourcing decisions.

The Commission’s analysis, therefore, followed the classic structure of tying doctrine: first, whether two separate products existed; second, whether the undertaking was dominant in the tying product market; third, whether customers were coerced into obtaining the tied product; and finally, whether the arrangement could foreclose competition in the tied product market. The Court upheld this framework, confirming that tying by a dominant undertaking may constitute abuse where it can restrict competition, even in markets characterised by technical integration.

Importantly, the exclusionary mechanism in the EU case was anchored in contractual and commercial arrangements. The foreclosure risk stemmed from the obligation, explicit or de facto, to source cartons exclusively from the dominant supplier once machinery had been acquired. Intellectual property rights were not the centrepiece of the theory of harm; rather, the abuse consisted in leveraging dominance in one product market to strengthen or extend power in another through structured contractual dependency. It is precisely this structured doctrinal setting that makes the trajectory of the Turkish decision particularly noteworthy.

The Turkish Case: Facts, Markets and the Abandoned Tying Route

The Turkish proceedings were triggered by a complaint that, in its underlying logic, bears a familiar resemblance to the classical European Tetra Pak narrative. At the centre of the complaint lay the claim that market power in upstream filling machinery was being leveraged to shape competitive conditions downstream in packaging materials, an ecosystem in which technical compatibility, switching frictions and long-term customer relationships can make foreclosure strategies particularly effective.

The complainant, a contract packaging producer, framed the case as one of dominance “spilling over” from aseptic liquid food filling machinery into the market for aseptic carton packaging materials: customers using the dominant machinery would, in practice, be compelled to source compatible packaging from the same supplier, either because alternatives were not viable or because commercial pressure rendered them impracticable. This is, structurally, the concern that traditionally invites a tying analysis.

Against that background, the rapporteurs’ assessment is a pivotal moment in the file. The report acknowledges dominance in the relevant aseptic machinery and packaging segments, but it does not endorse the core tying allegation. The rapporteurs’ position is that there was no tying between aseptic filling machinery and the specific prism-shaped packaging format at issue, and that the registration of three-dimensional marks relating to that prism format did not, in itself, create an entry barrier or lead to exclusion of the complainant from the packaging market. Put differently, the file’s original “EU-style” tying storyline is not accepted on its own terms at the reporting stage.

This is where the analytical trajectory of the Turkish decision becomes distinctive. Rather than concluding the case at the point where the classical tying theory was not substantiated, the Board majority reframed the matter around the undertaking’s shape-based intellectual property portfolio and its enforcement strategy. The focus shifted from whether customers were contractually required to purchase packaging materials together with the machinery to whether, in a dominant position, certain three-dimensional trademark and design rights were used as an exclusionary instrument, one capable of producing effects akin to tying.

In the Board’s reasoning, particular attention is given to three-dimensional prism-shaped registrations and applications that do not include clearly legible word elements. The concern is not merely formal: the Board treats such rights as structurally capable of extending control over the prism-shaped segment of the packaging space, potentially constraining rivals’ ability to offer functionally comparable alternatives. Crucially, this structural concern is then linked to how the rights were invoked in practice. The decision refers to enforcement conduct, communications that highlighted infringement risks to customers, warnings directed at rivals, and claims that arguably exceeded what competitors regarded as the legitimate scope of protection. The overall evidentiary narrative is therefore not simply that “a right exists”, but that “a right was deployed” in a manner capable of shaping market outcomes.

The Board goes further by describing this as the functional equivalent of tying: the exclusionary pressure that would traditionally be achieved through contractual obligations is, on this view, achieved through the strategic use of shape protection, reinforced, in the Board’s account, by certain contractual provisions that made customers more dependent on the dominant supplier’s materials once machinery had been purchased. This is an important doctrinal move. It suggests that the Board is prepared to treat IP enforcement as a vehicle for “de facto tying” where the economic effect is similar, even if classical tying, narrowly understood, is not established in the usual contractual form.

What makes this doctrinal move particularly distinctive is the conceptual apparatus the Board employs to justify it. The majority does not confine its reasoning to the categories of classical competition law. Instead, it draws on the Turkish private law doctrine of fraud on the law (fraus legis) to characterise the undertaking’s conduct. The reasoning proceeds as follows: the undertaking, being aware through prior EU competition law enforcement experience that contractual tying in a dominant setting constitutes an infringement, pursued the same economic outcome through a formally distinct legal instrument, namely the strategic acquisition and enforcement of shape-based intellectual property rights. In the Board’s view, this amounts to using a lawful mechanism (trademark registration) to achieve a result that competition law prohibits (exclusionary tying), thereby circumventing the substantive prohibition rather than complying with it.

This is a notable methodological choice. The importation of a general private law concept into the framework of competition law enforcement has no direct parallel in EU abuse of dominance jurisprudence. In the European tradition, cases involving the intersection of IP rights and market power, from Magill to Microsoft, have been resolved through competition-specific doctrinal tools: the exceptional circumstances test, the theory of leveraging, or the assessment of objective justification. The Turkish Board’s recourse to fraus legis introduces a different analytical register, one that frames the conduct not merely as an exclusionary practice but as a deliberate evasion of the competition law prohibition itself. Whether this conceptual expansion strengthens the coherence of the abuse finding or, conversely, introduces an additional layer of doctrinal complexity into an already novel theory of harm is a question left open by the decision.

The dissenting opinion highlights why this move is controversial. While accepting the dominance, it expressly recalls the rapporteurs’ conclusions that tying was not demonstrated and that exclusion and entry barriers were not established to the required extent. It also, correctly in principle, cautions that the mere possession of an IP right cannot be equated with abusive conduct. The disagreement is therefore not about market power, but about the standard for abuse and the evidentiary threshold for moving from “aggressive enforcement” to “anticompetitive exclusion”.

From Tying to IP-Based Abuse: A Doctrinal Shift or a Functional Adaptation?

The Turkish decision does not simply replace one legal label with another. It reflects a deeper shift in analytical framing. What initially resembled a tying case, at least from an economic standpoint, ultimately culminated in an abuse finding grounded in the strategic deployment of intellectual property. The critical question, therefore, is not whether abuse was found, but how it was conceptualised.

Classical tying doctrine offers a relatively structured framework: distinct products, dominance in the tying market, coercion, and foreclosure capability. In the EU’s Tetra Pak, these elements were observable in the contractual architecture itself. In the Turkish decision, by contrast, the Board did not identify a comparable contractual mechanism compelling customers to obtain packaging materials together with machinery. The classical elements of tying were therefore not established in their traditional form. Instead, the Board focused on the scope and enforcement of certain three-dimensional registrations and on how those rights interacted with dominance in adjacent markets.

This reframing is doctrinally important. The inquiry shifts from whether customers were required to purchase two products together to whether the dominant undertaking’s IP portfolio — particularly shape protection lacking distinctive word elements — exerts exclusionary pressure by limiting the design space available to competitors. One way to interpret this move is as a functional adaptation of tying doctrine to markets where exclusion operates indirectly: through legal uncertainty, the threat of litigation, or the practical deterrent effect of broad registrations rather than through formal contractual clauses. From that perspective, the Turkish decision could be read as recognising that tying-like outcomes can emerge without classical tying instruments.

Yet this functional reasoning also raises a structural concern. Tying doctrine, precisely because it is structured, imposes analytical discipline: separate products, dependency, foreclosure capability. When the theory of harm migrates into the broader category of IP-based abuse, those boundaries become less sharply defined. If aggressive enforcement of shape protection in a dominant setting can be recharacterised as abuse absent classical tying elements, undertakings face a more open-ended compliance landscape. The legal question shifts from whether two products were tied to whether the exercise of formally granted exclusivity is deemed strategically exclusionary. The dissenting opinion reinforces the sensitivity of this threshold. By recalling the absence of demonstrated tying and by questioning whether the evidentiary record established sufficient exclusion, the dissent defends a more structured approach to abuse analysis. The disagreement thus crystallises around the level of proof required to establish that a dominant firm’s IP strategy constitutes anticompetitive conduct.

Ultimately, the Turkish decision illustrates the porous boundary between tying and IP-based exclusion in shape-driven markets. Where dominance coexists with extensive control over commercially significant forms, competition authorities may perceive tying-like risks even without explicit bundling mechanisms. Whether such risks justify doctrinal migration from tying to IP abuse depends on how clearly the foreclosure mechanism and intervention threshold are articulated.

Intellectual Property Intervention: The Question of “Exceptional Circumstances”

The Turkish decision gains additional doctrinal depth when viewed against the European case law governing competition law intervention in the sphere of intellectual property. In EU jurisprudence, interference with the exercise of IP rights, particularly where it affects the substance of exclusivity, has traditionally been subject to a heightened threshold. Beginning with Magill3 and subsequently reaffirmed in IMS Health4 and Microsoft,5 the European  Courts developed what has become known as the “exceptional circumstances” doctrine. Although those cases primarily concerned refusal to license rather than the active enforcement of shape protection, they established a clear principle: competition law may limit the exercise of intellectual property rights only where particularly stringent conditions are met. These include, in various formulations, indispensability, the elimination of effective competition, and the absence of objective justification. Intervention, especially where it reshapes the scope of exclusive rights, must be grounded in demonstrable and serious foreclosure.

What is salient in the Turkish decision is that this European benchmark does not appear only as an external comparative reference. It is expressly invoked within the dissenting opinion. The dissent recalls the logic of Magill and emphasises that competition law intervention in intellectual property requires careful delimitation, implicitly questioning whether the majority’s reasoning sufficiently demonstrated that the circumstances warranted such intrusive measures. The debate over the applicable threshold was thus embedded within the Authority’s own deliberations. The majority, however, did not explicitly structure its reasoning around the language of “exceptional circumstances”. Instead, it focused on the exclusionary capacity of certain three-dimensional registrations in a dominant setting and on how those rights were operationalised in commercial practice. The logic appears functional rather than doctrinal: if the combined effect of dominance and broad shape protection can generate tying-like foreclosure, intervention may be warranted.

This divergence brings proportionality into sharper focus. The remedy imposed, requiring renunciation of registered trademark and design rights and withdrawal of pending applications, goes beyond behavioural correction. It directly modifies the undertaking’s intellectual property portfolio. Such measures, by their nature, are closer to structural intervention than to routine cease-and-desist remedies. From a competition policy perspective, the proportionality inquiry becomes decisive. If foreclosure is inferred primarily from structural capacity rather than demonstrated elimination of competition, the justification for extinguishing IP rights must be articulated with clarity. Otherwise, the boundary between legitimate exclusivity and anticompetitive abuse risks becoming indistinct.

The Turkish decision, therefore, crystallises a delicate equilibrium. On one side lies the imperative to prevent dominant undertakings from converting formal intellectual property protection into tools of exclusion in adjacent markets. On the other side lies the equally important need to preserve legal certainty in systems that grant exclusivity through administrative registration and examination. By bringing the logic of Magill into the dissent, and by departing from its vocabulary in the majority’s reasoning, the case highlights a deeper tension: whether the exceptional circumstances doctrine remains the appropriate compass for assessing IP-related abuse, or whether competition authorities may legitimately craft a more flexible approach where tying concerns intersect with shape protection.

The answer will likely emerge only through subsequent practice. For present purposes, the Turkish Tetra Pak demonstrates that the interaction between dominance and intellectual property is no longer confined to refusal-to-license scenarios. It now extends to the strategic architecture of shape protection itself—and to the level of intervention deemed appropriate when exclusivity and market power converge.

Policy Implications: Between Market Protection and Legal Certainty

Beyond its doctrinal interest, the Turkish Tetra Pak carries tangible implications for firms operating in IP-intensive markets. Its practical relevance lies not only in the fine imposed or in the renunciation of specific rights, but in the signal it sends regarding the competition law scrutiny of shape-based intellectual property strategies.

First, the decision suggests that three-dimensional trademarks and design registrations, particularly those covering widely used or industry-standard forms, may attract heightened scrutiny under competition law when combined with dominance. In markets where compatibility and format uniformity play a structural role, the breadth of shape protection may be viewed not merely as a tool for product differentiation but as a potential lever of exclusion.

Second, enforcement conduct matters. The Authority’s reliance on communications, warning letters and assertions of infringement indicates that competition analysis may extend beyond the formal validity of a right to encompass how that right is operationalised. Even when a registration is legally granted, its deployment in a dominant position may be examined through the lens of competitive impact rather than solely under IP doctrine.

Third, the decision introduces a degree of strategic uncertainty. If outcomes that are tied-like can be inferred from structural capacity rather than explicit contractual dependencies, dominant undertakings may face a more complex compliance environment. The traditional question—“are two products being tied?”—may no longer capture the full scope of competition risk. Instead, undertakings must consider whether the architecture of their IP portfolios, when combined with market power, could be interpreted as generating exclusionary effects.

At the same time, an overly expansive interpretation of IP-based abuse carries systemic implications. Intellectual property systems rely on administrative grant and registration procedures that provide presumptive validity. If competition law intervention reshapes those rights without a clearly articulated threshold, firms may struggle to calibrate investment and enforcement strategies with confidence.

The Turkish decision thus situates itself at a sensitive junction: it affirms the Authority’s willingness to scrutinise the strategic use of intellectual property in dominant markets, while simultaneously intensifying the need for doctrinal clarity regarding the limits of such scrutiny.

Conclusion: Evolution or Overcorrection?

The Turkish Tetra Pak marks a significant moment in the evolving relationship between dominance, tying doctrine, and intellectual property enforcement. Its importance does not lie merely in the identity of the undertaking involved, but in the analytical path the Authority chose to follow.

In European competition law, Tetra Pak became emblematic of structured tying: dominance in one product market leveraged through contractual mechanisms to restrict competition in another. The Turkish decision departs from that architecture. Although the case originated in tying allegations that echoed the classical EU narrative, the final abuse finding rested instead on the strategic deployment of shape-based intellectual property in a dominant setting.

This doctrinal migration is the core feature of the decision. Rather than identifying explicit contractual coercion or demonstrable foreclosure in the traditional tying sense, the majority held that the structural capacity of certain three-dimensional registrations, combined with their enforcement, was sufficient to justify intervention. The dissent, by contrast, underscored the absence of established tying and questioned whether the evidentiary threshold for exclusion had been met, recalling the discipline imposed in EU law through the “exceptional circumstances” framework.

The tension between these positions encapsulates the broader challenge raised by the case. Where dominance converges with extensive control over commercially significant forms, competition authorities may perceive tying-like risks even in the absence of formal bundling mechanisms. The question is not whether such risks exist, but how rigorously they must be demonstrated before intrusive remedies—such as the renunciation of registered rights—are imposed.

Whether the Turkish decision represents a calibrated adaptation of competition law to shape-driven markets, or signals a more elastic standard of intervention, will depend on how clearly future cases articulate the boundary between legitimate exclusivity and anticompetitive leverage. For now, Tetra Pak in Türkiye stands as a reminder that in markets structured around compatibility and form, the dividing line between intellectual property and exclusionary conduct is both consequential and increasingly delicate.

• 1Turkish Competition Board, Decision 24-32/758-319 (1 August 2024, published 17 October 2025).
• 2Case C-333/94 P Tetra Pak International SA v Commission [1996] ECR I-5951.
• 3Joined Cases C-241/91 P and C-242/91 P RTE and ITP v Commission [1995] ECR I-743.
• 4Case C-418/01 IMS Health GmbH & Co OHG v NDC Health GmbH & Co KG [2004] ECR I-5039.
• 5Case T-201/04 Microsoft Corp v Commission [2007] ECR II-3601.