In our recent A&M event series webinar, Lewis Silkin IP Partner Oliver Fairhurst and guest speaker Flora Joll (Strategy Director, JOAN Creative) explored what amounts to comparative advertising, the key UK rules that govern it, and the practical issues that arise when advertisers refer to competitors, their products or their branding. Here we recap some of the key insights from the webinar.

What is comparative advertising, and why do brands use it?

"Comparative advertising" means advertising which in any way, either explicitly or by implication, identifies a competitor or a product offered by a competitor. In this context, the definition of advertising is very broad, and includes any form of representation which is made in connection with a trade, business, craft or profession in order to promote the supply or transfer of a product. For example, advertising can include statements made to the press or on the packaging of a product. Comparative advertising is also a broad concept and extends beyond expressly 'calling out' a competitor's brand, and extends to implicitly referring to a brand or product or service it offers. This means it can be quite easy to fall within the scope of comparative advertising rules when crafting brand messages, and many seemingly innocuous executions can fall within scope even without naming the rival.

From a brand and creative agency perspective, comparative advertising can be novel and successful at cutting through to capture the attention of consumers. When chasing memorability, brands and agencies may be tempted to make bolder claims. However, sustained effectiveness in advertising usually comes from simple, singular messages repeated with discipline rather than gratuitous aggression. In some sectors, implications, rather than direct comparative claims, can be more persuasive and easier to defend. In sectors 

What are some of the practical pitfalls of comparative advertising?

For successful comparative advertising in most sectors, it will often be sensible to:

• keep comparisons implied where possible;
• stay restrained; and
• ensure claims are verifiable, because audiences are increasingly ad‑literate. 

While some sectors, such as fast-food on social media channels, have developed a culture of playful direct rivalry involving the use of comparative claims, this is the exception and does not relax the legal tests applied when determining if comparative advertising is lawful. 

As a brand owner facing comparative advertising claims from a competitor, this can be a sign that your brand is relevant. Relevance is harder to come by now than it ever has been – silence can mean apathy or that your brand is no longer a competitive force to be reckoned with.

What are some of the legal risks of comparative advertising?

There are a range of legal constraints on making comparative advertising claims. While trade mark law provides the most significant constraint on referring to a competitor's trade mark in comparative advertising, brands and agencies must also be aware of copyright, defamation, malicious falsehood, passing off, consumer protection rules and compliance with the UK Code of Broadcast Advertising (BCAP Code) or the Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code). 

Comparing your brand with another by name usually involves the use of a competitor's trade mark, typically in relation to identical goods or services for which that mark is likely registered. Such use may be trade mark infringement unless it complies with Business Protection from Misleading Marketing Regulations 2008 requirements, which include that the advertisement:

• not be misleading;
• compare goods or services meeting the same needs or intended for the same purpose;
• objectively compare one or more material, relevant, verifiable and representative features of those goods and services, which may include price; and
• not create confusion among traders, between the advertiser and a competitor, or between the advertiser's trade marks, trade names, other distinguishing marks, goods or services and those of a competitor.

There are some forms of comparative advertising which are particularly high risk. For example, price comparisons can be risky due to dynamic pricing, loyalty tiers and "as at" snapshots. Similarly, shopping basket price comparisons date quickly, are vulnerable to challenges about product selection and store footprint, and need clear in‑ad verification. When making comparisons around effectiveness of a product the underlying evidence quality and verifiability for the claim are make‑or‑break: a mouthwash claim of "two times more effective" without robust technical substantiation fails.

How to challenge a comparative advertising claim – ASA, litigation, or a commercial response?

Advertising Standards Authority (ASA) is UK's regulator of advertising, and is often the first port of call when challenging comparative advertising claims. Complaints made to the ASA are cheap in comparison to legal proceedings, however there are no financial remedies or injunctive relief available. When making a complaint to the ASA, a complainant is usually required to give an undertaking not to commence legal proceedings in respect of the same ad, which means that brand owners must usually make a choice between the ASA or court proceedings.

Commencing litigation can be advantageous for brands, as damages and costs can be recovered if an action is successful, and a court may order injunctive relief preventing the defendant advertiser from repeating the claims, or make a publication order requiring the defendant to publish the judgment or some other corrective statement. Before commencing litigation against a rival, a brand owner should however consider the content of their own advertising and the risk of a counterclaim if they cannot substantiate their own comparative claims.

One alternative to ASA or the Courts is for a brand consider available commercial, such as raising issues with a retailer that stocks both the challenger and the compared brand, and there is scope in some instances to "compare back" at a similar threshold against the challenger.

Conclusions

Comparative advertising remains a powerful tool when deployed with confidence and care. To learn more, or to watch the full recording, please get in touch with events@lewissilkin.com.