Orange’s victory has sent the industry an inspiring message.
It was a case that was supposed to cost Orange ‘a bob or two and a smack
on the bottom’. That was what Vodafone’s chief executive, Sir Gerald
Whent, smirked last year when he took the rival mobile phone network to
court for malicious falsehood and infringement of a registered
At the heart of his complaint were the ‘lies’ contained in some of
Orange’s aggressively comparative advertising: particularly claims that
Orange customers would have paid pounds 20 a month more with Vodafone or
Eight months later Vodafone is the one having to dig deep (Campaign,
last week). Pursuing the action is estimated to have cost both companies
around pounds 250,000 in legal fees, but Vodafone is the one picking up
the tab. And the only reprimand remains the one delivered by the judge,
Mr Justice Jacob, in dismissing the case. He called Vodafone’s case on
malice ‘hopeless’ and rejected the company’s allegations of deliberate
perjury against three Orange witnesses as ‘preposterous’.
If that hurt, Vodafone isn’t saying. Understandably, Orange has not been
so reticent, and celebrated the decision with the launch of a pounds 1
million advertising campaign. Copylines such as ‘tried and trusted’ and
‘law but elsewhere disorder’ make sure that the message of the court
case is brought home to a wider audience.
The real mystery is how this spat got so out of hand. Lawyers examined
the Orange ads before the campaign broke, and the ads themselves were
cleared by the Broadcast Advertising Clearance Centre. On the other
hand, Vodafone’s legal advice was that there was a clear case to answer.
‘Part of the problem is that the Trade Marks Act, which relaxed
restrictions on comparative advertising, only came into effect in 1994,’
Philip Circus, the director of legal affairs at the Institute of
Practitioners in Advertising, explains, ‘and because this is a
relatively new piece of legislation the parameters of what the act
actually allows are still being established in the courts.’
Certainly this case seems likely to persuade some ad agency lawyers that
comparative claims made in ads are not the potentially litigious mine-
field they appear to be.
‘I feel sure this case will encourage agencies to give the green light
to more comparative copy,’ Circus continues. ‘TV is the one area where
the perceived legal impediment has restricted comparative ads and maybe
this case will persuade advertisers to have a go.’
It might also make advertisers stop to consider whether knocking copy
actually works. There are some big advertisers, Nestle is one example,
who won’t allow comparative ads at all, fearing that the very mention of
a competitor’s brand somehow demeans their own.
Certainly Cellnet, a rival to both Orange and Vodafone, has come unstuck
in attempting to return fire on Orange. Cellnet used the national and
trade press to launch a campaign based on price comparisons of its own
shortly after the Orange campaign first broke. But this week the
Advertising Standards Authority ordered Cellnet to withdraw its ads,
ruling it had made ‘selective, misleading and unfair claims’. Cellnet is
now deciding whether to appeal against this ruling, while Orange has yet
to decide whether to take the matter up with the courts.
‘We definitely support comparative advertising as long as the
comparisons are well made,’ John Hooper, the Incorporated Society of
British Advertisers’ director general, says. ‘If you’re making a
positive statement about the values of your brand, like the Daewoo
series for example, then it can be very effective. It’s when you embroil
the customers in any sort of unpleasant stuff that it seems to
Chris Baker, BST-BDDP’s planning director, agrees: ‘You’ve got to have a
good reason for comparing yourself with the opposition, some reason to
show you are better, because the danger is that you are taking a brand
that consumers have grown to love and saying that they’re stupid for
Where comparative advertising can work really well, Baker argues, is in
helping consumers to make functional choices rather than brand choices
because ‘they’re not investing their self-esteem in that choice’.
However, that doesn’t mean a rival company is going to feel any less
bitter about a comparative campaign aimed directly at a weak spot in
its own product. When Virgin launched its Upper Class service there was
considerable doubt in consumers’ minds about the offering. In fact, it
was a direct competitor to the business class offered by the likes of
British Airways on the transatlantic routes. But, partly because of the
name and partly because, at that time, the difference in the level of
services offered was huge, consumers were slow to catch on. The answer
was a comparative campaign.
‘I like comparative advertising,’ Robert Campbell, Rainey Kelly Campbell
Roalfe’s creative partner, concedes. ‘But it is important to get the
tone of the ads right. In the case of Upper Class we had Terence Stamp
just to present the facts. What we didn’t want was for him to suggest
that if you were currently using another airline you were being foolish.
And that’s quite a difficult tone to achieve.’
The advantage of getting comparative work right was apparent on the
faces of Orange’s senior management. Get it wrong, though, and
Vodafone’s pounds 500,000 bill and dented public confidence are the very
least you can expect.