Choc licked

18 September 2009
Whittaker’s recent television advertisement comparing one of its chocolate bars to Cadbury’s is a marketing approach rarely seen in New Zealand. From a consumer’s perspective, it’s a pity we don’t see more comparative advertising like this, as the information provided helps us make informed buying decisions. We like that.

But from a marketer’s perspective, it is perhaps understandable that comparative advertising is used sparingly. There are risks associated with comparative advertising that often assign it to the too hard basket when deadlines are tight.

But just because something is harder doesn’t mean it shouldn’t be done. Comparative advertising can be extremely effective and is worth considering in proper cases.

If you are thinking about using comparative advertising, here are some things to think about in shaping your advertisement:


You cannot mislead people

A sure-fire way to end in court and get bad publicity is to tell porkies in your advertisement.

This includes saying something that is just untrue or omitting a fact that is so important the comparison you are making is unbalanced.

An advertisement stating that your lounge suites are half the price of your competitors is not balanced if the reason your lounge suite is cheaper is because the craftsmanship of your competitor is better.  And you omit that fact from your advertisement.

Being honest and complete in comparative advertising is the most important consideration.

This is because misleading people can be a criminal offence under the Fair Trading Act. A criminal conviction (for the company and sometimes its directors) is something you should always try to avoid.


You cannot degrade your competition

Under the Advertising Standards Code of Ethics advertising should not degrade identifiable products or competitors.

It is fine to make a statement about a feature your product has that others do not, but that message should be delivered in a positive way. You should try to identify the extra feature of your product rather than the lack of that feature in your competitor’s product – it’s all in the delivery.

It’s also not acceptable to make degrading statements generally about all of your competitors’ or their products, particularly in small markets where consumers will immediately know who you are talking about.

As an example, imagine an airline advertisement that said “we service our planes twice as regularly as our competitor’s do”. Consumers would immediately know who you were talking about, even though you didn’t name your competitors. Even if the statement is true, it is probably degrading, particularly if your competitor’s are servicing their planes adequately.


You cannot take unfair advantage of your competitor’s trade mark or damage the distinctiveness of their trade mark

As a general rule, you can only use another person’s registered trade mark with their consent. However, an exception exists for comparative advertising which is fair and treats the other person’s trade mark properly.

It is not fair to use another person’s trade mark in a way that rides on that trade mark’s reputation to improve consumer opinion of your product. An example of this would be an advertisement for a new car brand favourably comparing the new car to a Rolls Royce. You would need to be very careful not to be seen as only referencing Rolls Royce so you can tap into the idea of quality associated with that brand.

It is also not fair to play around with another person’s trade mark in your advertisement. Don’t, for example, slowly turn another brand green (with envy) as you explain the reasons your product is better.


Copyright can still bite

Copyright law does not have an exception like in trade mark law allowing the use of another person’s copyright.

Brands that include logos and labels can be both a registered trade mark and a copyright work.  You can, therefore, infringe a person’s copyright by featuring their logo or label in your advertisement, despite this being allowed under trade mark law.

To avoid this, an alternative is to use your competitor’s brand in plain font only, as this is unlikely to be a copyright work, and avoid using any other copyright works that your competitor may own. But this approach is not always desirable, for you or your competitor. The key is to be aware of this issue and weigh up how you want to deal with it in each case.

Given the rarity of comparative advertising in New Zealand it stands out from other advertising. It gets people talking and catches their attention. If used correctly and fairly it can be a powerful marketing tool.

The key is to ensure you use comparative advertising fairly and tell the whole truth. Whittaker’s have shown how it can be done in an effective and powerful way. It’s a marketing tool you might find useful too.  But take care about what you say.

An edited version of this article was published in FMCG, September 2009.

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