is this type of advertising legal?

[websitedeveloper]

can we get into trouble by saying our product is a "replacement" for a competitor's, as follows on this banner?
http://www.mindgem.com/experience/advertising/banner6.html
and
http://www.mindgem.com/experience/advertising/banner1.html
perhaps we're better off using the word "alternative"... think our competitor would/could take legal action if we say "replacement"?

thank you in advance!

 

[websitedeveloper]

so many "views", but no replies... is it because it's a stupid question, or a hard question?
any advice is very appreciated!

 

[Mr Webname]

Many readers may not truly understand your question eg:-

as follows on this banner?

What does that mean? What banner?

Also it may be thought best to let one of the legal professionals answer your question.
However my advice is to be clearer and give more detail in your question.

 

[Jack Gordon]

I understood the question. I didn't reply because I didn't feel competent to offer legal advice, which it looks like you are seeking.

From a marketing perspective, I think "alternative" is preferable to "replacement" because it is more accurate and lacks the baggage.

 

[websitedeveloper]

I agree with you both. thank you. So we'll go with "alternative".

Mr Webname, the banner can be seen via that link... if you cannot see it, perhaps you haven't yet downloaded the Flash browser plugin.

 

[Mr Webname]

Mr Webname, the banner can be seen via that link... if you cannot see it, perhaps you haven't yet downloaded the Flash browser plugin.

Probably Norton ad-blocker.

 

[jberryhill]

Your problem, if you were in the US, for example, does not arise from whether you use the word "replacement" or "alternative". The question has more to do with whether your use constitutes acceptable comparative advertising. While it is certainly clear that you consider your product to be a replacement for another product, since "X replacement" is the first thing that shows up in the ad, I don't really ever seem to catch what your product is called. The main impression I come away with is "X replacement". That is not a comparison of anything to anything, at least on the casual glance I gave it.

There is a name that comes up at the end, if you wait long enough, but it is not clear whether that is the name of a product, or a company that makes a product, or what.

"is it because it's a stupid question, or a hard question?"

Neither. It takes about ten seconds to ask a question which might require a considerable deal longer to provide an informative discussion of what might be relevant. Such discussions themselves are necessarily incomplete.

That and the fact that your ID says you are in France. Does anyone here know French law on the use of marks comparative advertising? I, for one, don't.

The simple answer to any question beginning, "Can I get into trouble for..." is usually yes.

 

[Jack Gordon]

The simple answer to any question beginning, "Can I get into trouble for..." is usually yes.

words of wisdom

 

[websitedeveloper]

Thank you for replying John!

So our product (software) is called "MindGem" (a file sharing client); maybe by reversing the ad and saying "MindGem, a Kazaa Alternative" constitutes acceptable comparative advertising according to US law?

Or is it recommended to leave our main competitor's name totally out of our advertizing? Which would be a pity because our product really does have several advantages and benefits.

 

[Kid Kool]

Thank you for replying John!

So our product (software) is called "MindGem" (a file sharing client); maybe by reversing the ad and saying "MindGem, a Kazaa Alternative" constitutes acceptable comparative advertising according to US law?

Or is it recommended to leave our main competitor's name totally out of our advertizing? Which would be a pity because our product really does have several advantages and benefits over our competitor's.

If i were you i would simply refer to your competitor as your "competitor" and refrain from mentioning them by their official name.

 

[websitedeveloper]

yes that would be the safest choice... thank you for helping.

 

[Jack Gordon]

I see no reason to be that safe. As long as you are not commiting libel, naming your competitor is a time-honored advertising tactic.

 

[jberryhill]

"naming your competitor is a time-honored advertising tactic"

Again, maybe you know more about the law in France than I do, but while in the US "comparative advertising" is permissible, not every mention of one's competitor is necessarily permissible comparative advertising.

Consider the text "MindGem, A Kazaa Alternative" - Does that clearly state that MindGem is a competitive product, or does it state that "MindGem" is an alternative product also offered by the same people that make Kazaa? I can't speak for the average internet user to know how many would interpret the statement one way or another.

A survey of some comparative advertising issues is here:
http://www.inta.org/policy/res_compad.html

...and it appears that, at least at some point in time, the prevailing rules were stricter in the EU than in the US.

 

[websitedeveloper]

it looks like we must give it a miss... we're just students and file sharing is already a controversial product so we cannot afford to step on any more peoples toes.

We'll probably just use that advertising on our site only. Would that be okay?
But we would prefer to display it publicly like this:
"MindGem, a Kazaa Alternative?"
(note the question mark) then on our site we could have a disclaimer: "MindGem is in no way associated with the developer's of Kazaa"
Is that permissible according to US law?

BTW: thanks for the link John