Thinking Attack Ad? Five Tips to Keep You Out of the Courtroom

Growing Popularity of Attack Ads Calls For Caution

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NEW YORK (AdAge.com) -- Comparative ads -- from soup taste tests to the bitter Microsoft and Apple computer wars -- have made a comeback as marketers scramble for market share during this recession. Attack ads can be a winning strategy if executed smartly, but a costly misstep that could leave you with a legal battle on your hands if you're not careful.

One reminder of that? A federal court ruling this week that the nation's largest satellite TV provider, DirecTV, must temporarily halt radio, print and direct-mail ads that capitalize on competitor Charter Communications' potential bankruptcy. The ads were created by Interpublic Group of Cos.' Deutsch.

Below are five tips marketers and their agencies should consider if they plan to use comparative ads, from Michael McSunas, a lawyer at Chambliss, Bahner & Stophel P.C. and an avid Twitterer at @AdLawGuy.

  1. Double and triple check to make sure you have proper substantiation for each comparative claim prior to running the ad. In the event of a Federal Trade Commission inquiry about your claims, you'll be required to provide proof that you had substantiation before the ad appeared.
  2. Always compare apples to apples. If you're not, be transparent about it. For instance, if a carmaker plans to run an ad comparing the lowest-level trim of two cars, and one comes in an automatic and the other is a shift, the company should explicitly state that's the case.
  3. A key argument in the ongoing Gatorade-Powerade dispute is Pepsi's claim against Coke for "trademark disparagement." Pepsi says Coke isn't playing fair when it displays a photo of a Gatorade bottle lopped in half alongside the slogan "Don't settle for an incomplete sports drink." There's a good lesson here. If you use competitor's trademarked product in your ad, use it in the same manner they do. Altering them or destroying the marks could be the basis of a legal claim.
  4. Beware of making implied claims. Even if everything you're saying may be literally true, if the net impression is false or misleading, that could spell trouble. Say a commercial depicts someone with a headache with a pained expression after taking Drug B with a voice-over that states: "If you want real relief from headache pain, don't take Drug B. Take Drug A. Nothing relieves headache pain better than Drug A." It's easy to see how a consumer might take away a superiority message -- which could lead to a legal claim from your competitor.
  5. Just because you don't name your competitor in an ad isn't a guarantee of safety. It could open you up to even more litigation because now all of your competitors could lodge a claim against you. For instance, if your ad says "We have the best consumer-satisfaction rating of any hotel," every other hotel chain is a potential plaintiff in a false-advertising claim against you.

Said Mr. McSunas: "Just because an advertiser was not sued, doesn't mean the ad in question was 'legally fine' ... it just means that they got lucky this time, or that their competitor didn't want the publicity that goes along with the lawsuit."

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