Comparative Advertising: Can I Talk About My Competitor On My Website?

I am often asked, “Can I talk about my competitor on my website?” 

To answer this question, I thought I would do a quick post about comparative advertising. The Federal Trade Commission promotes lawful comparative advertising as a great way to inform consumers and increase competition.

Describing how your product is superior to your competitor’s can be a very effective positioning tool and possibly lead to significant economic gains. However, it can also invite litigation. There are strict rules about casting your competitor in a negative light. Further, the more successful your campaign, the more it is likely to offend and provoke retribution from your competitor.

If you want to compare your competitor’s products to your own, you need to (1) evaluate whether it’s worth the risk of being sued, and (2) mitigate those risks by strictly complying with the law.

Let’s take a closer look:

Even if you follow the letter of law when developing your comparative advertising campaign, you may still get sued. Being right doesn’t prevent someone from suing you. In most cases, it helps to act as a deterrent. However, everybody knows that big corporations with armies of lawyers at their disposal are not always deterred by the fact that the law is not on their side. Large corporations sometimes use the law to outspend and bully their smaller competitors.

Thus, before you decide to engage in a comparative advertising campaign, reflect a moment on who you are likely to offend. Does this party have a history of aggressive litigation and the money to outspend you? If so, then whatever gains you make in market share and revenue may be eaten up by legal fees. Remember, you will pay your attorneys to defend you whether you acted rightly or wrongly.

If you decide to go ahead with your comparative advertising campaign, you must pay strict attention to advertising and trademark laws in order to mitigate your risk. Unfortunately, this little blog post cannot be an exhaustive list of compliance procedures because state and federal laws vary. However, there are some important common trends that are worth highlighting:

• All of your claims about your competitor’s product must be true.
• Comparative advertising must never be deceptive. Do not mislead consumers.
• If you make specific claims about your competitor’s product, be sure and have a third party substantiate those claims in a reasonable and thorough manner prior to running the ad. Don’t wait until you are sued to do the research that proves your claims. Document and substantiate your claims.
• Include a disclaimer indicating that you are not affiliated with your competitor in any way. I realize this is not intuitive. Why would people think you’re affiliated with your competitor when you are criticizing their product? The answer is that some courts have ruled that consumers who take a cursory look at the advertisement may recognize your competitor’s branding and then, without reading more, assume that you’re affiliated. I realize that having a disclaimer doesn’t really solve this quick association problem, but judges seem to think that it does, so follow their rules.
• Don’t manipulate your competitor’s trademark or logo in any way and always use the ® symbol if it is a registered trademark. “Don’t manipulate” means do not alter the shape or color of the logo or create a parody of your competitor’s trademark. Even if your product is bigger, faster, and stronger, you are still violating advertising laws if you alter your competitor’s logo in any way. Respect the brand while you accurately point out the ways it is deficient to your product.

For further information on comparative advertising, read the FTC’s policy and the FTC’s FAQ on the topic.

Note: If your mark has been unfavorably featured in a comparative ad, then there are several venues in which it may seek relief, including: the Federal Trade Commission (“FTC”), the National Advertising Division of the Council of Better Business Bureaus (“NAD”), and the courts (under state or federal trademark and anti-dilution laws).

Thanks for your kind attention to this post.

Respectfully,
Sarah Bird