Today I was searching the Internet for some interesting news to write about and I stumbled upon a press release from Burger King regarding its a ¼ pound Double Cheeseburger now being available for only $1. In some markets the ¼ pound Double Cheeseburger has been available for $1 for the past 18 months, but now it is being added to the BK® Value Menu in participating Burger King® restaurants nationwide. In the press release Burger King compares the ¼ pound Double Cheeseburger to McDonald’s® Double Cheeseburger and Wendy’s® Double Stack, concluding that its burger “beats competitors’ sandwiches.” It sometimes comes as a surprise that comparative advertising is allowed, and indeed even encouraged in the United States. There are guidelines that need to be observed when engaging in comparative advertising, so I thought I might take a moment to explore those guidelines. Of course, now with it being lunch-time I am making myself hungry!
The way I stumbled upon this press release is because I was searching for news items relating to “innovation,” and while the addition of a burger to a dollar menu is not really an innovation, quoted in the release was John Schaufelberger, who is senior vice president, global product marketing and innovation, Burger King Corp. So I was hooked, perhaps even lured in. In any event, Schaufelberger explained that: “During a time when value is a priority for everyone, we’re offering a top-quality product that not only boasts an affordable price point but also tastes great.” True enough, but can Burger King get away with comparing its burger to those of its competitors? The answer is yes, indeed they can, although the comparison here is a little ambiguous.
The press release explains:
The $1 ¼ pound Double Cheeseburger features two flame-broiled hamburger patties, crunchy pickles, ketchup, mustard and two slices of American cheese on a sesame seed bun. With more beef and cheese, the $1 ¼ pound Double Cheeseburger beats competitors’ sandwiches, such as McDonald’s® Double Cheeseburger and Wendy’s® Double Stack.
According to the Federal Trade Commission:
[C]omparative advertising is defined as advertising that compares alternative brands on objectively measurable attributes or price, and identifies the alternative brand by name, illustration or other distinctive information.
Furthermore, the FTC explains:
Comparative advertising, when truthful and non-deceptive, is a source of important information to consumers and assists them in making rational purchase decisions. Comparative advertising encourages product improvement and innovation, and can lead to lower prices in the marketplace.
Trademarks are important business assets, but they do not come with exclusive rights in the same way that a patent or even a copyright provides. Trademarks are a form of intellectual property right, but they are not mentioned in the so-called intellectual property clause in the U.S. Constitution. Trademarks are created as an extension of the Commerce Clause power given to Congress in the Constitution, and they actually do not protect the business owner directly. The justification for trademarks is that they provide information to the consumer who can then appropriately make an informed decision, so trademark law only indirectly provides protection to the business owner. The primary benefit of a trademark is to communicate information to a consumer. Of course, if you have a trademark and it is used by another, or some similar trademark is used that would likely create confusion for the consumer, there is a business injury to the trademark owner that is recognizable in law. The thrust though is whether the consumer would be confused.
Because the focus is on consumer confusion and trademarks are intended to help consumers make informed decisions, comparative advertising for the most part presents no trademark issues. As Burger King is doing here, they identify their competitors by name and they identify the competing sandwiches, so the reader would not be confused in any way with respect to who is offering the product. The focus is on comparing the product Burger King offers to those of its major competitors and concluding that the Burger King product is better.
One area where advertisers can get into trouble with comparative advertising is when the advertising is not correct or is misleading. Here Burger King states that with more beef and cheeses its burger beats the burgers offered by McDonald’s® and Wendy’s®. I doubt there is any kind of deception or misleading going on here, but what exactly does it mean that the Burger King burger “beats” the burgers offered by McDonald’s® and Wendy’s®? The comparative advertising here is perhaps not as clean and clear as it could be, and would not only be more effective and clearly in legal safe-harbor area if it were more direct and less ambiguous. For example, if the theme of the announcement is about value then why not say that with more beef the Burger King burger offers greater value, provides greater bang for the buck or beats the other burgers by offering more for the same price?
I certainly would not expect McDonald’s® or Wendy’s® to take issue with this statement, this is just normal business practice in industry. But it is important to realize that if you are going to engage in comparative advertising you really should take precautions to make sure what you are saying is objectively true and not calculated to mislead. With these precautions you can certainly engage in comparative advertising if you like. Of course, if you do engage in comparative advertising you run the risk that you are advertising for your competitor, but that is a business decision, not a legal decision.
As for me, I like Burger King and I might just head out and pick up a sandwich for lunch. Unlike Renee, who likes McDonald’s burgers and Burger King fries, I prefer Burger King burgers and McDonald’s fries, so maybe I will need to make two stops!
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