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.