More Lawsuits Than Brand X!

November 25, 2009 at 4:28 pm 2 comments

The New York Times reports a growing phenomenon in the marketing world: companies suing their rivals for claims made in attack ads–or comparative advertising, if one opts for the gentler term. Pantene vs. Dove, Iams vs. Science Diet, AT&T vs. Verizon, and Campbell Soup vs. Progresso are listed as examples of ad wars that have prompted legal action.

Aggrieved companies’ recourses range from complaints to the National Advertising Division of the Council of Better Business Bureaus to lawsuits under 1946’s Lanham Act for false advertising. Verizon’s red and blue map comparing its nationwide 3G coverage to AT&T’s is one of most notable recent cases. AT&T has sued, claiming that Verizon’s graphic of patchy coverage implies that it has no cellphone service whatsoever in the map’s blank expanses.

Admittedly, I enjoyed the Verizon commercial with a dejected AT&T smartphone arriving at the Island of Misfit Toys from 1964’s “Rudolph, the Red Nose Reindeer.” I didn’t run out and buy a new phone; I’m just a child of the ’60s who got the joke.

The real issue: at a time when all advertising is being questioned for its effectiveness, measurability and ROI, how much significance do attack/comparison ads have? Going a step further, do the ads actually diminish the brand’s reputation and dignity? (Now there’s some serious ROI.)

In The Journal of Economics and Management Strategy, three European academicians assert that comparative advertising signals “quality” when a market entrant takes on an incumbent brand. They conclude that the known threat of lawsuits lends credence to the entrant’s comparisons for the very fact that they are being made under such litigious conditions.

In contrast, AdWeek columnist Barbara Lippert takes a dim view of side-by-side comparison ads. She lambasts Dove for an ad that equates “soap” with “scum” and deems such product comparisons a throwback to the advertising of 50 years ago.

Are the complaints and lawsuits ultimately counterproductive when they produce negative publicity? (And they do.) The NYT article presents expert conclusions that the Campbell/Progresso legal battle ended up driving away customers for the entire ready-to-eat soup market.

Inevitably, the issuer of an attack/comparison ad is acknowledging that the rival brand is #1. It is always a position of weakness. Witness Buick’s campaign for the LaCrosse that morphs its vehicle with the Lexus 350. Blatant and desperate. Barbara Lippert points out two campaigns where also-rans at least showed creativity and humor: Avis’ “We Try Harder” and Apple’s “Get a Mac.” But did Avis ever beat Hertz? No. Have Macs outsold PCs? No, but their overall sales are up; however, some attribute this not to the ads but to a halo effect from the iPod along with Microsoft’s self-inflicted wounds from Vista.

I work across the marketing mix, but the PR guy in me trumps the ad man on this issue. Attack/comparison ads inherently reinforce perceptions of inferiority and can stir even greater negativity with counter-claims and lawsuits. At the end of the NYT article, James P. Othmer sums up the shortfalls of the attack ad mentality: “they’re not thinking about what consumers want to hear — they’re just talking at conference tables about how to strike back…”

What do consumers want to hear? Nasty ads and subsequent reports of lawsuits don’t top the list.

POSTSCRIPT: Enfamil maker Mead Johnson loses in a lawsuit brought by private-label baby formula maker PBM. The federal court ruled that Enfamil ads constitued false advertising by suggesting that cheaper baby formula could impair babies’ health and development. The judgement: $13.5 million.


Entry filed under: Advertising, Creativity, Media. Tags: , , , , , , , , , , , , , , .

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2 Comments Add your own

  • 1. Jonathan Vos Post  |  December 9, 2009 at 8:16 pm

    Does anyone here have accurate data on what I heard was a mid-19th Century bill that almost passed into law by British Parliament. It would have banned advertizsng almost completely. I heard that it was because of a plethora of handbills, and company-paid graffiti painted on natural landmarks (in parks and the like). Is there an alternate reality where the UK limited ads to paid printed items in a select list of authorized newspapers and magazines, and noplace else? Could that have spread to the USA?

    • 2. jasonkarpf  |  December 9, 2009 at 11:46 pm

      There have been various bans on comparative advertising, the type at the heart of this story. Interesting information you present. Worth looking into.


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