False Advertising Claims on the Rise

Posted on November 25, 2009 by Karen Brennan

There was a very interesting article in the New York Times this weekend worth reading - Best Soup Ever?  Suits Over Ads Now Seek Proof.

The article addresses several recent issues raised by companies against competitors over statements or claims being made in advertisements.  Specifically, companies are challenging the truth or implied truth in competitive ads in an attempt to get the ad withdrawn or changed.

Apparently, the number of complaints over advertisements with the National Advertising Division, as well as the number of false advertising lawsuits (under Section 43(a) of the Lanham Act) are up significantly.  Some interesting disputes from the article include:  

  • AT&T sued Verizon Wireless over an ad chart, claiming it falsely implied that AT&T had no cell phone coverage in the white area (rather than no 3G coverage):

The lawsuit attacks use of the chart in several commercials.  One great example, is Verizon's Island of Misfit Toys commercial.  In this holiday commercial, out-of-date toys have been banished to an island where Verizon sends one of AT&T’s new phones, due to its allegedly inadequate coverage.  On a related note, the National Advertising Division recently recommended that Sprint discontinue its use of the claim "Most Dependable 3G Network" due to a lack of sufficient support for the claim. 

  • Pantene attacked Dove’s claims that its conditioner repairs hair better.  According to the Times, Dove defended its claims with a market study and an expert to defend its use of “wet combing” versus “dry combing” technique.   Based upon a quick review of a few blogs, these two companies are in direct competition over solving the frizzies (for examples, see here and here). 

The Times article suggested defending such claims sometimes requires “delving into the minutiae” and raises the question of whether most consumers actually believe and/or rely on statements such as “no other dog food stacks up” or a hair care product that can really “repair hair better.”  Regardless, it is a great article for anyone interesting in marketing. 

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An Ounce of Prevention is Worth a Pound of Cure

Posted on August 22, 2009 by Brad Walz

The importance of logos in branding has been discussed in detail. Although words are generally thought of as the most dominant portion of a trademark because they are spoken by consumers, the logos themselves convey equally powerful and important messages. Which is why this element in the overall branding strategy should be cleared by trademark counsel prior to investing significant sums of money in promoting the trademark.

Recently, Under Consideration’s Brand New Blog featured the rebrand of Suramericana, an insurance company. Suramericana’s old logo was a recognizable picture of a bird and its new logo is a very modern depiction of a bird. One commentator said about the new logo “[a]m I the only one seeing the Sprint logo in the ‘wing’?” Sprint Communication Company L.P. is the owner of a federal registration for a design that the United States Patent and Trademark Office classifies as “wings, birds’.” The Suramericana new logo does look an awful lot like an upside down version of the Sprint logo.

While Suramericana probably does not have to worry about receiving a nasty letter from Sprint over its logo because insurance and telecommunication services are unrelated, this situation presents and important point.  A trademark clearance search should be done on all elements of the trademark even those elements that do not immediately stand out as something that deserves a search. Assuming the services were related, Suramericana could have found itself in a position where it would have to repeat its rebranding effort. The upfront investment in trademark searches is generally worth the money given the peace of mind a search can provide.

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