CLOSE-UP: LIVE ISSUE/COMPARATIVE ADVERTISING; Has Orange made comparative ads more viable?

Orange’s victory has sent the industry an inspiring message.

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

using it.’

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.