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Comparative advertising is an area full of legal pitfalls: legal pitfalls in legal minefields. Surrounded by a thick and unforgiving legal quagmire.
And it isn't just the law that complicates matters. Customers typically dislike this sort of spiel:
Aren't ‘Brand [X]’ rubbish? We mean: really quite lavishly rubbish. Our widgets are so much better…
Mentioning competitors also means that a business might be giving aid and succour to the 'enemy'. They may as well say 'Brand [X] does exists and we're really quite worried about them.'
Indeed, if your client inadvertently starts a war with their competitors, tit-for-tat bickering between them can quickly start to damage both brands and product categories. Customers may start to think: 'I’m not going to bother with either of you. A plague on both your houses!'
In brief, a badly executed comparative advertising campaign can backfire spectacularly. Is it any wonder that advertisers see this form of advertising as somewhat taboo?
Now, don't get me wrong, I'm not saying 'don't bother'. Sometimes the battle comes to your client. Last week, for example, Morrisons supermarkets announced a price match guarantee scheme to fight discount supermarkets such as Lidl and Aldi, the market share of which has been increasing in recent years. On the other hand, Morrisons recently reported a fall in half-year profits of more than 30%:
Lidl, who stand to lose business with this development, responded with this ad (which was very well received on social media):
Whether it works in practice only time will tell.
So what do you need to know if your client wants, or indeed needs, to launch a comparative advertising campaign.
As a commercial lawyer, you’ll be familiar with the following:
As for the what you will need to know, prepare to ask these sorts of questions (warning: there are quite a few):
That is some list!
What is shows is how complicated and exacting this area is. Throwing together an ad in a fit of pique or creativity simply won’t do.
But if you put the effort in, help you client get it right legally, then you may be onto a winner...
If you have any comments or thoughts, let us know below.
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