EVALUATION OF THE IMPLICIT ADVERTISEMENT (AUGUST 2019)
Understanding of
advertisement by customers is the main element of the advertising law. The
meaning of covert advertising banning is defined under Article 61/4 of Consumer
Protection Law numbered 6502. According to the related article, it is forbidden to share any
distinguishing features or names that are made for the purpose of advertising
about the goods and services without stating the advertisements object.
The Article 61/4 foresees that: ‘’Including trade name or organization names through
name, brand, logo or other signifying symbols or expressions for the goods and
services in articles, news or programs without clearly stating that it is an
advertisement and presentation of such in a promotional manner shall be
deemed as implicit advertisement. Aural, written, or visual implicit
advertisements are prohibited in all kinds of communication tools.’’
Under article 61/4,
‘’purpose of advertising’’ and ‘’presentation of such in a promotional manner’’
are the main elements of identifying implicit advertisements. This review is
carried out by the Advertisement Board and the Board may impose sanctions as a
result of such review. However, the Board never research in detail and decides
penal sanction easily. Indeed, in recent days implict advertisements contain
distinctive commercial elements which have become two and three dimensional. In
accordance with the above-mentioned article, these issues need to be thoroughly
examined and understood.
In today's visual media,
especially in television broadcasts, a great effort is made to prevent implicit
advertising. It is easy to observe that logos, titles and signs are tried to be
covered up. Although blurring, mosaic or icing methods are applied, these
prevention efforts are insufficient when three-dimensional and two-dimensional
designs have increased. Even if the logo of the brand is covered by the
blurring method, the customer mass can easily understand which brand belongs to
the design from the external design of the product. For this reason, the
necessity of implicit advertising ban in today's media has become a subject of
discussion.
To give an example for
better understanding; Covering the logo of a BMW branded vehicle is not enough
to prevent implicit advertising. Most of the audience can determine the brand
because of the three-dimensional exterior design of the car. On the other hand,
if the three-dimensional design is completely covered by the icing method to
prevent implicit advertising, it will make the viewing pleasure unbearable for
the audience. Moreover, the German company has applied to EUIPO for
registration of the shape mark and has taken this design under protection.
Although this registration is not valid in Turkey, the registration has a very
significant commercial value for using the BMW branded vehicles.
Another example is, the
tennis racket brand Wilson, Wilson Sporting Goods Co., has registered the
special type of ‘’W’’ and uses it on its rackets. These rackets used by manyfamous
tennis players in international tournaments clearly include the logo of Wilson.
Although the covering the logo in the broadcasts of these tournaments may be
foreseen to prevent implicit advertising, this is not possible in practice. As a
result of covering the tennis racket with the icing method, the tennis match
will no longer be watchable.
In these cases, implicit
advertisements cannot be considered separate from trademark law. As we pointed
out in the beginning of the article, the shape of the logo or design should
also be examined in addition to “purpose of advertising’’ and “presentation of
such in a promotional manner’’. However, covers on logos, titles and signs to
prevent implicit advertising are often meaningless and sometimes devoid of
legal basis.
As a result, the
prohibition of implicit advertising should be reconsidered with all types of
shape brands and three-dimensional brands, especially in view of emerging
wearable technology products.
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