Wikipedia defines advertising as a form of marketing communication that employs an openly sponsored, non-personal message to promote or sell a product, service or idea. In the words of Leo Burnett - “Good advertising does not just circulate information; it penetrates the public mind with desires and belief.”
Advertising can be Informative which is heavily used when introducing a new product category, while Reinforcement Advertising aims to convince current purchasers that they have taken the right decision. Corporate Advertising does not promote specific product/services but “promotes the overall image of the company, by assuming a position on a social issue or seek direct involvement in a cause” and Persuasive Advertising aims at creating preference, conviction and purchase of a product and services; and makes use of comparative advertising where explicit comparison of the attributes of two or more brands are made and usually in favor of the sponsor.
Comparative advertising is when an advert directly or indirectly compares the advertiser’s product/service with that of another party (usually, a competitor). Referred to also as advertising war and in mostly, focuses on a comparison of the prices, quality and/or durability of a product. The rationale is usually to create impression that the advertiser’s products is of the same or superior quality, but offered at a lower price; or criticize the quality of the compared product or services.
Although comparative advertising encourages owners to innovate and improve products and services, which increases competition in the marketplace, it is an area full of legal pitfalls. For example, misidentification of products and of course, potential legal issues.
In the US and UK, comparative advertising is entirely legal. Therefore, use of a competitor’s trademark in accurate and non-deceptive comparative advertising is permissible and does not constitute trademark infringement. Truthful comparative advertisements are considered beneficial to competition and serves as information for consumers to help them make rational purchasing decisions. However, reference to a competitor’s mark must neither imply affiliation nor endorse your products or services.
There is no specific legislation that governs comparative advertising in Nigeria, however, the Trademarks Act 1967, Nigerian Communications (Enforcement Processes) Regulations, 2005, The Cosmetics and Medical Devices (Advertisement) Regulations (CMD Regulations) 2018 and the Advertising Practitioners Council of Nigeria (APCON) Code of Advertising Practice 2012, offer provisions which are often relied on to support the ban of comparative advertising in Nigeria and they appear to provide a framework to prevent violation of the rights of others.
In practice, direct calling out is not exactly permissible in the Nigerian ad space and is against the professional ethics of advertising. One cannot call out a rival brand/competitor directly, but can make reference to their brand elements like colour (e.g. green for Etisalat vs yellow for MTN), logo or slogans; etc.
Although adverts with a higher level of reference intensity would draw more attention, it may cause more harm than good on both parties. Since the main focus of advertisement is to attract the consumers to a particular product, care must be taken as to what information it provides. If done in a fair manner, these advertisements help the consumer to make an informed and efficient choice.
We are however in an era of smart and subtle advertising where some ads do not pull-down competition but put them on their toes. The Nigerian approach is therefore to avoid risk, keep such comparisons of other parties’ products/services to a minimum and to what is permissible or allowed under our laws.
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