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Mine is Better than Yours

Commercial Law

f your product is 25% more efficient than your competitors, why not tell consumers?  Comparative Advertising, that is, drawing direct comparisons between yourself and your competitors in a marketing campaign, can be a fantastic way to demonstrate the superiority of your product or services over your competitors.

As effective as this can be, you need to take care when you adopt this strategy.  You need to be mindful of the laws against misleading and deceptive conduct whenever you launch an advertising campaign.  You need to be especially mindful of them when conducting a Comparative Advertising campaign, because you can be assured that there will be at least one business that will be motivated to challenge you.  You are picking a fight directly with a competitor, and it is likely that they will fight back if you give them scope.

By following these practical tips, you can limit your competitor’s ability to fight back against a comparative advertising campaign:

1. Be accurate:

Make sure your representations are accurate; any advertisement containing a price comparison must accurately state the difference in prices, whether it be in the form of a “pay $X less” or “save X%” comparison.  Make sure your advertisement is technically correct. Even underselling your product’s price point has been known to bring trouble; you must be factually accurate.

2. Consider the campaign from the consumer’s perspective:

Will the consumer get an accurate representation and impression of your and your competitor’s products from this campaign? Is it a fair impression?  If they will not, do not run your campaign.

3. Compare ‘like’ for ‘like’:

Are you comparing apples with apples? When comparing your product to another, be sure that your competitor is acting in the same market place and the product that you refer to is a direct competitor.  Whilst in certain circumstances the courts have been known to permit a business to compare one of their superior products with a competitors inferior one, the courts require accuracy and will more often than not require products do be in direct competition.

4. Consider the lifespan of the campaign:

How long will your representation be accurate? And further, how are your competitors going to respond to your campaign? Cunning competitors will often react to a comparative advertisement by altering their product to bring it in line, a tactic often used when price points are compared.

Whilst your comparison may be accurate at the beginning of your campaign, any change to yours or your competitor’s product can be seen to mislead the consumer and will result in the courts befriending your competitor.

5. Study your competitor’s products.

The production of independent data backing up your representations will help to protect you from any claims. Remember, to run a comparative advertising campaign you must be personally confident that you are not misleading any consumers.

6. Silence can be misleading.

Check whether there are any facts which are being kept hidden from the consumers. If so, then the campaign may be misleading.

7. Seek an outside opinion:

Prior to launching your campaign, have an independent person consider the same issues raised above with fresh eyes. You may be too close to be objective.

If you are considering comparative advertising as a strategy or want to talk about any marketing compliance or consumer related issues, contact us today.