The dos and don’ts of advertising wars

16th Nov 2019

Comparative advertising can be a useful tool to undercut competitors, but it must be used with care.

Considering the growing number of complaints raised, it is important that brands recognise the legal dos and don’ts of this powerful marketing tool. 

The UK’s Advertising Standards Authority (ASA) handled 111% more complaints about competitive internet price comparison 2018 and 2017. In 2018, some 16,000 non-broadcasting advertisements were found to be misleading to the consumer.

When referring to a competitive business or brand within a comparative ad, ensure the ad complies with the Business Protection from Misleading Marketing Regulations 2008, to avoid a trade mark infringement claim.

With all this in mind, we have summarised the rules of comparative advertising. 

The dos of comparative advertising

Do make a comparative list.

When comparing products against your competitors, ensure they have the same function or intended purpose. For products with a designation of origin, they must be compared only with other products with the same designation.

When making comparisons based on price, feel free to compare promotional prices with non-promotional prices but ensure this is stated within the ad.

Similarly, when making price comparisons, ensure that the products being compared are of the same size or volume, or allow these differentiations to be reflected within your calculations.

Advertisements should avoid absolute comparisons against the whole market.

Do compare one or more features of goods or service.

Brands should ensure that price comparison data is up to date and that the date of the comparison is stated in the advertisement. For the ASA Guidance on retailers’ price comparisons in marketing communications click here.

Do make sure the ad is supported by verifiable data available to the consumer.

An ad that features a comparison with an identifiable competition must include enough information to allow the consumer to understand the comparison, and be able to check the claim was accurate, or ask someone suitably qualified to do so.

The don’ts of comparative advertising

Do not mislead the consumer.

When making price comparisons with a recommended retail prices (RRPs), the ASA will likely find the consumer to be misled when the RRP differs significantly from the price at which the product or service is generally sold.

Where the ad makes a comparison with an unidentifiable competitor, the elements of the comparison must not be selected to give the advertiser an unrepresentative advantage.

Do not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services, activities or other circumstances of any competitor

Do not take advantage of the reputation of a trade mark or create confusion with another competitor

Do not present products as imitations or replicas of products bearing a protected trade mark or trade name.

Brands should obtain legal advice before embarking on a comparative advertising campaign. Considerations should also be given if the ad will be exposed to multiple jurisdictions. If you identify a comparative advertisement from outside the UK, a complaint can be raised through the EASA which operates in Europe to ensure advertisements are legal, decent, honest and truthful.

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