2009 saw a notable stream of lawsuits brought by brands against their rivals for alleged wrongful ad claims, and this year should provide even more such charges.
There are multiple reasons why brands are reaching for the courts, says Chris Cole, litigation partner in the advertising practice at Manatt, Phelps & Phillips. “Last year the economy was bad, budgets were tight, and companies were looking for ways to take share from each other,” he says. “One way to do that is to stop the other side from advertising something you think is untrue.”
But marketers also feel the need “to shout more” to cut through the clutter, Cole points out. That aggression leads to ad claims that push the envelope, and rivals are likely to push back in suits.
For example, AT&T filed suit last year against Verizon Wireless’ “map” ads slamming its 3G coverage, but dropped the action after a court ruled that while the ads might be “sneaky,” they weren’t deceptive. Meanwhile, earlier this year, Domino’s ran a commercial that used Papa John’s own testimony in a separate lawsuit to state that its claims of “Better ingredients. Better pizza” were just “puffery,” i.e., ad-speak.
The bottom line, says Cole, is that marketers need to vet ad claims and campaigns pre-launch for a legal response from rivals.
And that includes campaigns like the Quiznos vs. Subway user video contest, subject of a lawsuit by Subway since 2007. Faced with the prospect of a jury trial, Quiznos settled in February. That disappointed marketers who were hoping the suit would finally produce a firm precedent on marketers’ responsibility for claims made by brand fans.
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