Compare and Contrast (Carefully)

Written: 24-Feb-2014 | | Filed under: Content & Copy

So, it’s time to develop some web content about what you offer. Maybe it’s a product or category page in your store, or a blog post or newsletter article, or a landing page for an email campaign… whatever, you’re going to be talking about your products or services.

One question you may be asking yourself is whether to mention your competitors by name.

I mean, it’s one thing to simply say your product is “better.” Many prospects will greet a claim like that with a hearty “Yeah, yeah, yeah, blah, blah, blah…” As we all know, the more specific you get, the more credible your claims appear. And one of the most specific things you can do is name names. Compare your product directly against a known competitor (or two or three).

But competitors may not like having their products called out in your marketing… and unhappy competitors have been known to file lawsuits. How can you reduce your risk?

A few things to keep in mind

  • First, remember nothing is guaranteed. You can follow all the right steps and a competitor may still take umbrage. Just keep in mind, threatening a lawsuit is not the same as filing a lawsuit. And filing is not the same as winning. If still feel uneasy, consult with your legal advisor and together decide how much risk you’re willing to take.

  • You are allowed to mention your competitors. You can use their trademarks in what’s called the &lduqo;nominative fashion” — in other words, simply to identify them as your competitors. Make sure you clearly distinguish between your products and your competitors’ products. You don’t want people to get confused, thinking there’s some affiliation or relationship between you and them.

    For instance, awhile back an online retail marketing company called Integral displayed their competitor Ebates’ logo on their site as part of a comparative ad, claiming their offer is better. Ebates asked the courts to issue a temporary restraining order against Integral to prevent the ad from running until the issue could be resolved in a lawsuit, but they were turned down. Part of the reason was that Integral used the trademarks only to identify Ebates as the competitor, and made it clear there was no affiliation between the two.

  • It’s important to tell the truth, about yourself and about them. Misrepresenting the nature or capabilities of either your product or your competitors’ can get your business — and you, personally — in big trouble.

    Edward Sumpolec, DBA ThermalKool, ThermalCool and Energy Conservation Specialists, was ordered to pay a $350,000 civil penalty for making deceptive claims about the insulation capabilities of his products. The important part to pay attention to in this is that it was the person himself who was assessed the penalty.

    You may think setting your business up as a corporation will shield you from this situation. However, as I’ve written before, it’s possible to pierce the corporate veil when authorities can show an individual corporate officer (or group of officers) was responsible for making the decision. In the case of a one-person-“corporation”, it actually becomes rather easy.

  • You may need to verify your claims more than once. Especially in the case of long-running campaigns, you may find a claim that started out true doesn’t always stay true forever.

    T-Mobile used to claim they had “America’s Largest 4G Network.” When they first started making the claim, it was probably true. But as other cell providers built our their 4G networks, at some point it ceased being true. Fortunately, T-Mobile proactively discontinued use of the claim, focusing instead on their network speed and dependability… but not soon enough to avoid a challenge by AT&T brought before the National Advertising Division (NAD), an investigative unit of the advertising industry’s system of self-regulation administered by the Council of Better Business Bureaus.

    In the course of investigating AT&T’s complaint, the NAD determined it was “necessary and proper” for T-Mobile to discontinue the claim, as their evidence regarding their competitors’ network size was not up-to-date.

So what have we learned?

Assuming your products compare favorably with the competition, there’s little reason to be fearful about naming names. It’s probably OK to mention your competitors in your marketing materials, as long as you’re truthful about both their products and your own, and you don’t imply any association or affiliation between the two of you. (And when in doubt, consult your legal advisor.)

Have you ever used a side-by-side comparison with your competitors’ products in your marketing? If so, how did it work out for you? Do you have any tips to add for those who would like to try this technique?

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