Put your best foot forward. This is what all brands, through advertising, aim to achieve, particularly where a brand’s “best foot” is the “best foot” in the market. So if brand X is cheaper than brand Y, how can it go about making this expressly known to consumers? Leaving creative and emotional advertisements to the side, comparative advertisements can be an effective way of creating interest where the benefit relied on is a simple fact or figure. What is “comparative advertising”?
An advertisement is comparative where it identifies a competing product or service. The word “identifies” encompasses several manners of referring to a competitor. Specific naming
This manner of comparative advertising is very rarely used in New Zealand. A notable example is the Whittakers vs Cadbury advertisement in 2009, in which Whittakers very simply compared various facts of both brands, for example cocoa content, side by side.
The benefit of this comparative advertising appears to have been utilised more effectively by the or ‘challengers’ of the market, focussing on features of difference which their brand is proud to promote.
Under the Trade Marks Act 2002, a person does not infringe another person’s trade mark by using it for the purpose of comparative advertisement, assuming of course it is in accordance with honest practices. Indirect reference
Advertisements which indirectly or by implication make references to a competitor or class of competitors are a much more common form of comparative advertisement, for example “other supermarkets” or “... as good as a professional...”. Even advertisements which use adjectives such as “premier” or “cheapest” are likely to be considered comparative. The “should’s and should not’s” of comparative advertising
Having established what a comparative advertisement is, it’s important to understand what restrictions exist to protect those brands being compared, as well as consumers.
It is important to note that, even though the Trade Marks Act permits the use of a trade mark, the Copyright Act 1994 prohibits the reproduction of a logo as an artistic work. Therefore if you are referring to a competing brand specifically, it should be stated in block letter form.
The Advertising Standards Authority (the “ASA
”) Code for Comparative Advertising (the “Code
”) lists three header requirements for comparative advertisements which are supported and explicated by numerous Guidelines which advertisers are subject to comply with:
1. It should be factual and informative.
This illustrates the purpose of comparative advertising; factual accuracy and the intention to inform consumers, as opposed to an attack on or to discredit other products (directly or by implication). For example, a Telecom advertisement which compared its service with 2degrees and followed with the phrase “now that doesn’t seem fair” was held to introduce a negative tone and was held to be in breach of the Code.
Conversely, an advertisement must not identify a competitor for the benefit of association, or to take unfair advantage of the “goodwill” / esteem attached to the reputation of a brand. There must be an honest, consumer focussed, purpose.
2. It should explicitly or by implication make clear what comparison is being made.
Price should be compared with price. This is very important to enable the consumer to ascertain the comparison and accordingly make a fair judgment. It must also be clear what competitors are being “identified”.
3. It should not mislead the consumer about other products or services with which comparisons might be made.
Consider an advertisement which compares the cost of a fridge. If the price of one service excludes other fees or costs, the comparison will be misleading. These partial / “hidden” facts must be considered in the comparison being made. It must include the full story. Further, comparing insignificant differences of a good or service (in terms of its value and usefulness) may cause the consumer to draw an improper conclusion. How to do it?
If an advertisement is going to “identify” another competitor, make sure the comparison is founded on solid evidence, make sure it clear and make sure all related factors are considered.Published in Admedia Magazine in December 2011