Can my e-communication mention my competitors?
Through its presence on the Internet, a company will face the question of competition and comparisons between its own goods and services with those of other companies. The comparison may be beneficial, for instance if the consumer has the impression that the small company is doing as well as the biggest player on the market or that dominance of the market by a company is justified by the quality of that company’s products and services.
Whether this comparative e-communication will amount to unlawful comparative advertising mainly depends on three questions:
- Does the company name its competitors?
- Does the e-communication belittle the competition?
- Does the e-communication create confusion with competitors? (Article 19 AMPC)
Returning to Janssens-Quidam’s case, their main competitors were foreign companies without a branch in Belgium. One month after launch of the product, Leon added a poll to the website: ‘10 advantages of JQ? A prize for you! Take part in the vote on the main advantages of the Janssens Quidam products over those of the competition’. Each vote provided web users with a chance to win in the Janssens-Quidam raffle in accordance with rules contained in a 3-page document.
Whether such a poll is lawful or not (irrespective of the question of lawfulness of the raffle itself) will greatly depend on the facts, with ‘positive’ and ‘negative’ points that bring the poll closer to lawfulness or unlawfulness.
The question contained in the poll already implies a chance that the poll might belittle the competition. As a result, if the poll names or gives information allowing the identification of competitors, this can be a negative point.
Linking participation in the comparison with a prize or reward is probably also a negative point, as it is likely to influence the behaviour of web users, adding a certain dose of bias and subjectivity that is not supposed to be present for a comparison to be lawful.
If Janssens-Quidam lists the advantages from which to choose and does not allow web users to add advantages to the options, this will play against Janssens-Quidam in terms of lawfulness.
Conversely, the greater the web user’s freedom and the more the comparison stems from the web user him- or herself, the greater the chances of the comparison being deemed to be lawful. The ideal comparison in legal terms is therefore the one that comes spontaneously from the web user (and naturally that praises the company rather than the competition).
It is therefore best therefore to be careful and to ensure that the comparison does not stem from the company, unless of course the comparison is based on verifiable and objective criteria and does not belittle the competition.
Can a court judgment be deemed to be an objective criterion for comparison? An example is the English judgment in the Apple v Samsung cases that were widely commented through the better part of 2012. In these cases, the iPad manufacturer accused the manufacturer of the Galaxy Tab of copying its product in various respects, from the shape to the user interface. The English Judge, Judge Birss, considered that the Samsung products were not a copy of the iPad, and stated that ‘[t]hey are not as cool’ [Note: See Ch. ARTHUR, ‘Samsung’s tablet ‘not as cool as iPad’’, The Guardian, 9 July 2012 (view online).].
Therefore, if Apple were to refer in its e-communication to the judgment of the English judge to claim that the Galaxy Tab is not as ‘cool’ as the iPad, one might wonder whether such a judgment does not actually ‘objectify’ a criterion for comparison that is eminently subjective.