Who has been your favourite character in a Christmas advert this year? Lidl's kind-hearted racoon? John Lewis's Little Shop of Horrors-inspired ten-foot Venus flytrap? Or perhaps the lonely elderly widower in the £700 viral effort made by Charlie's Bar in Enniskillen, County Fermanagh, Northern Ireland, where there are "no strangers, only friends you haven't yet met".
The only one that has really caused me to do a double take so far is Michael Bublé's outing as Asda's new 'Chief Quality Officer', particularly when he uttered the line, "M&S taste at Asda price".
There's always a bit of a frisson when one brand explicitly names a competitor in its own marketing – one form of a practice known as 'comparative advertising'. Referring to a competitor this way inevitably involves using one of its trade marks, so it is perhaps unsurprising that there are strict rules that apply to this potentially contentious area. The relevant law in the UK is derived from EU Directive 2006/114/EC, commonly known as the comparative advertising directive (“CAD”), implemented by the UK in the form of the Business Protection from Unfair Advertising Regulations 2008, and also expressed in the Advertising Codes written by the Committees of Advertising Practice.
To fit within the CAD, and therefore to benefit from the limited shelter it provides from trade mark infringement claims, a 'comparative' advert must (amongst other things):
- not be misleading;
- not take unfair advantage of the reputation of the competitor’s trade mark;
- not present goods or services as imitations or replicas; and
- objectively compare one or more material, relevant, verifiable and representative features of those goods and services, which may include price.
Is Asda's claim that it provides 'M&S taste' one that can be objectively verified? 'Taste' is a famously subjective concept and the Advertising Standards Authority ("ASA") has been asked on a number of occasions in recent years to adjudicate claims that one food or drink product tastes better than another. From the ASA's point of view, what this will usually boil down to is whether consumers have been given sufficient robust information to allow them to understand and check the comparison being made. An example of an advert that was found to fall the right side of the line was the claim by Heineken UK Ltd t/a Bulmers (Heineken)'s claim that "2/3 of drinkers prefer the taste of Bulmers Original to Magners Original", with the ASA ruling in on that complaint providing useful guidance on the information that must be made available to consumers and what constitutes a 'reasonable' survey for the purposes of substantiating such a claim. Falling on the other side of the line was Iceland's claim that "Iceland Luxury Sourdough Crumpets are better than M&S Ultimate Five Grain Crumpets for overall quality*", with the ruling in that case concluding that the survey size was too small and did not ask the right questions to substantiate that claim.
Turning back to Bublé and Asda's claims this festive season, Senior Director of Brand Communications at Asda Stephi Brett-Lee appears confident of Asda's position, reportedly stating that "In thousands of blind taste tests, 100s of Asda products were found to be as tasty, or even tastier, than M&S." A detailed page on Asda's website sets out the study underpinning its "M&S Taste Match" campaign.
A point M&S could be forgiven for making is that it is one thing to refer accurately to the preferences of a limited sample of participants in a blind taste test, even if it is a relatively large sample, but another to imply more broadly that one undertaking has successfully replicated the taste of another undertaking's products.
Might the courts be of more assistance to complainants than the ASA? There have not been many cases on comparative advertising that have reached trial in England, and pro-competition English judges have tended not to be thrilled about hearing them when they have. In his judgment in the Ryanair v British Airways case, Sir Robin Jacob memorably and wearily said:
“So I must decide the case, however immature it may seem for two large companies to be fighting this sort of dispute in the courts. It seems particularly odd commercially that BA should persist in its claim that the price comparisons are misleading. The complaint amounts to this: that Ryanair exaggerate in suggesting BA is 5 times more expensive because BA is only 3 times more expensive”.
Would M&S have much to gain by challenging Asda, even if they were successful? Probably not. In the hyper competitive supermarket sector in the UK, legal battles can attract blow-by-blow press coverage – who can forget the IP story of 2021, when M&S took Aldi to the High Court alleging that the latter's 'Cuthbert the Caterpillar' cake infringed the former's rights in 'Colin the Caterpillar', much to the evident delight of Aldi's social media team, given the platform it provided for their #FreeCuthbert campaign? What was the equivalent advertising value of those column inches to Aldi?
M&S have not been totally silent on Asda's campaign so far. When it was first launched, M&S CEO Stuart Machin posted the following on X (formerly known as Twitter):
“I always find it strange when retailers use other brands for their advertising. At M&S taste without values is not quality in our eyes. When it comes to product we constantly strive to lead the way on quality, welfare, and innovation with no ‘nasties’. Others have tried to copy us for years and that's fine – it keeps us focused on setting the standard. To offer real quality you can’t cut corners and customers see through marketing gimmicks.”
As Oscar Wilde once wrote, "there is only one thing in the world worse than being talked about, and that is not being talked about". In the scheme of things, M&S might grit its teeth and conclude that there are worse things than being cited as the benchmark for tasty food at this time of year.
Merry Christmas, everyone – wherever you do your shopping.
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