And although one legal expert said Campbell's victory was not clear-cut, the marketer may still crow about its victory by re-running a TV commercial that rubs its rival's nose in the decision.
The U.S. Court of Appeals for the 2nd Circuit ruled against Van den Bergh's appeal of a March 1995 decision by the U.S. District Court for the Southern District of New York. The earlier decision dismissed Van den Bergh's suit seeking to have Campbell's comparative ad campaign for Prego halted.
Van den Bergh couldn't be reached last week to discuss the latest development.
RAGU SEEMS THINNER
The TV spots, which had been running since 1988, showed a side-by-side comparison of Prego's regular version and Ragu Old World Style spaghetti sauce. In several executions, some of which show the two brands being poured over spaghetti and through slotted spoons, the ads portray Ragu as thin and runny compared to a thicker, slower-pouring Prego.
Van den Bergh "challenged us before the networks, then the National Advertising Division of the Better Business Bureau, in court and now through the appeal," said Bob Hirsch, senior exec VP at FCB/Leber Katz Partners, New York, the agency that created the campaign. "We've prevailed throughout."
CLASSIC COMPARATIVE AD
The campaign, held up as almost a classic case of comparative advertising, was originally conceived as a way to distinguish Prego, then an upstart brand, from market-leader Ragu.
"They had like a 50% share of the category in the 1980s and we had to find a way to show consumers we were better," said Mr. Hirsch. "Seeing is believing."
Prego's volume share of the spaghetti sauce category, according to Information Resources Inc., was down 0.6% for the 52 weeks ended July 7. But its volume share, at 26.3%, was encroaching on Ragu, at 33.2%. Ragu's volume share was down 2.3%.
Campbell said it might reprise an ad run initially in March 1995, after its earlier court win.
The ad tweaks Ragu by showing snippets of the comparison ads and then a shot of Prego with a breadstick standing up in the sauce. The tagline: "Ragu took us to court..... We made our case stand. Just like our breadstick."
A spokesman said the commercial might be repeated during the company's next ad flight for Prego, planned for Sept. 30.
UNLIKELY TO APPEAL
Although technically the case has one more level of appeal-the U.S. Supreme Court-an attorney specializing in advertising said it was extremely unlikely that Van den Bergh would appeal that far.
However, the lawyer also noted the decision wasn't a clear-cut win for Campbell. He noted the court dismissed the case because Van den Bergh waited too long to sue.
"It's as if Coke was running an ad saying Pepsi was no good since 1988 but Pepsi waited until 1993 to sue. The court is essentially wondering how false the ad could be if they waited five years to sue," he said.
Campbell said it was going to continue its competitive barrage. While Mr. Hirsch wouldn't discuss specific ad plans for the brand, he said the marketer and agency "are constantly working on evolving that simple idea."