Heinz or Hellmann’s, You Decide
Heinz or Hellmann’s which is creamier? It’s the legal question that has puzzled lawyers (well, at least one, me) for the last…..2 hours. I know what you’re thinking, “the whole ad is only six words in total, how complicated could it be“? SPOILER ALERT – Very.
You see, this is a type of comparative advertising. Comparative advertising is actually quite rare. Why? Well, quite often when people use comparative advertising, they end up getting sued. Next time an ad comes on the TV for washing powder or some product like that, which announces it’s “even better” or something along those lines, check what it’s being compared to. More often than not, it’s the previous version of the same product. It’s safer to say this version is “even better” or and “improved formula” than your own existing product, because then nobody is going to sue you.
Enter Heinz (and a random lawyer taking a photo of Dublin Bus in the sunshine, again, me). I pixelated all the faces, because we here at Leman are ISO compliant you understand.
The Hellmann’s Trademark
For a trademark lawyer what’s most interesting here is that Heinz is using Hellmann’s trademark in their ad. Can they do that? In a word “Yes…..maybe”, ok, so two words then. Here’s a list of the trademarks active in Ireland owned by Hellmann’s:
They have a couple of word trademarks registered as far back as 1981. So it would seem that this ad on this bus is breaching their trademark…..but not so fast.
Here comes that law bit. Section 14(6) of the Trade Marks Act 1996 provides, that in relation to infringement (set out in sections 14(1) to 14(5)):
Nothing in the preceding provisions of this section shall be construed as preventing the use of a registered trade mark by any person for the purpose of identifying goods or services as those of the proprietor or licensee of the registered trade mark; but any such use, otherwise than in accordance with honest practices in industrial or commercial matters, shall be treated as infringing the registered trade mark if the use without due cause takes unfair advantage of, or is detrimental to, the distinctive character or reputation of the trade mark.
That’s all well and good, but, well that part of the Irish Act (and there’s also a UK equivalent) doesn’t come from or necessarily comply with EU Law. The primary purpose of the section has been judicially interpreted as “to permit comparative advertising“…which leads us nicely to The Comparative Advertising Directive (2006/114/EC). It has also been held that our Trade Marks Act cannot allow a greater level of protection than that afforded under the Comparative Advertising Directive .
Article 4 of the Comparative Advertising Directive allows comparative advertising, provided that:
it is not misleading within the meaning of Articles 2(b), 3 and 8(1) of this Directive or Articles 6 and 7 of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (‘Unfair Commercial Practices Directive’) (7);
it compares goods or services meeting the same needs or intended for the same purpose;
it objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price;
it does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services, activities or circumstances of a competitor;
for products with designation of origin, it relates in each case to products with the same designation;
it does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products;
it does not present goods or services as imitations or replicas of goods or services bearing a protected trade mark or trade name;
And then there’s the terms of the Consumer Protection Act, 2007 (which implements the Unfair Commercial Practices Directive of Article 4(a)). In particular section 44 of the Consumer Protection Act, 2007 sets out that
“A commercial practice involving marketing or advertising is misleading if it would be likely to cause the average consumer…to make a transactional decision that the average consumer would not otherwise make”
And finally, section 46 of the Consumer Protection Act, 2007 sets out further information:
46.— (1) A commercial practice is misleading if the trader omits or conceals material information that the average consumer would need, in the context, to make an informed transactional decision (“material information”) and such practice would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make.
(2) A commercial practice is misleading if—
(a) the trader—
(i) provides material information referred to in subsection (1) in a manner that is unclear, unintelligible, ambiguous or untimely, or
(ii) fails to identify the commercial intent of the practice (if such intent is not already apparent from the context),
(b) such practice would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make.
So, quite a lot of law for six words then.
Which Mayonnaise is Creamier (and some legal questions)
Well actually, the ad doesn’t say, does it? It says it’s “as creamy” as Hellmann’s. More on that below.
Question 1 – What is the effect of saying your Mayonnaise is “as creamy as Hellmann’s“?? Does it “without due cause take unfair advantage of, or is detrimental to, the distinctive character or reputation of the trade mark” of Hellmann’s? (Section 14(6) of the Trade Mark Act 1996 and Article 4(f) of the Comparative Advertising Directive). For example, this could have said “As creamy as the others, only Heinzier”
Question 2 – Is the ad misleading? Would it “be likely to cause the average consumer…to make a transactional decision that the average consumer would not otherwise make“?
Question 3 – Does the ad “objectively compare one or more material, relevant, verifiable and representative features of those goods and services, which may include price” (Article 4(c) of the Comparative Advertising Directive). In essence, is how “Creamy” a Mayonnaise is a “material, relevant, verifiable and representative feature” of Mayonnaise? For what it’s worth I did a straw poll in the Leman office for the first characteristic of Mayonnaise and nobody said “creamy” or “creaminess”. What about “Heinzier“? That’s not really something you can compare is it?
Question 4 – Does this ad “omit or conceal material information that the average consumer would need, in the context, to make an informed transactional decision (“material information”) and such practice would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make” (Section 46 of the Consumer Protection Act, 2007) and particularly, does it “provide material information referred to in subsection (1) in a manner that is unclear, unintelligible, ambiguous or untimely”
Section 46 of the Consumer Protection Act, 2007
Behold, the small print!
I’m used to small print, in fact, I love small print. I’m a lawyer, that’s my job.
Typically (think any shampoo add ever) you get text with a little star at the bottom that says “*95% of 15 people surveyed agreed” to verify the facts. That, I would argue provides material information in a manner this is clear, intelligible, ambiguous and timely.
More recently however, I’ve started to notice phrases “email [insert email address] for verification” or “call [insert telephone number] for details”
Here’s one great example (yes, I did rewind my own TV to record this):
I’ve just emailed, so I will let you know:
Now, here’s the question, is providing an email address or telephone number sufficient to satisfy the requirements of section 46(2)(a)(i) of the Consumer Protection Act 2007?
It also brings us back to our Dublin Bus:
To get the verification for this, the bus would have to be stopped. If it was moving, you would be very hard pushed to read the website address “heinz.ie/mayosurveyresults” particularly given the size of the text relative to the rest of the ad:
Fortunately for me, the bus was stopped, my phone was handy and I’m a lawyer, so I got the website, and I went there. Here’s what it says “In response to the question “Of the two mayonnaise products that you have tried, which one was the creamiest?”, 49% selected the product code for Heinz, 47% selected the product code for Hellmann’s, and 4% selected ‘no difference”.
Heinz Seriously Good Mayonnaise versus Hellmann’s Real Mayonnaise Test
Primary consumer research was conducted by an independent Market Research agency, MMR Research Worldwide Ltd. (www.mmr-research.com), across three regions in Ireland (Cork, Dublin & Galway), with fieldwork taking place between 4th and 20th February 2019.
A total of n=300 participants (~n=100 per region), all of whom regularly buy the standard variant of mayonnaise for their own consumption, were recruited face-to-face via an interviewer-administered 5-minute pen and paper questionnaire to attend a central location test, where they were asked to assess both Heinz Seriously Good Mayonnaise and Hellmann’s Real Mayonnaise.
The weighted sample composition was 40% male & 60% female, 60% aged 18-44 & 40% aged 45-64, 55% ABC1 & 45% C2DE, with 60% most often buyers of Hellmann’s Real Mayonnaise, 15% most often buyers of Heinz Seriously Good Mayonnaise, and 25% most often buyers of other brands.
Participants were served both mayonnaise products with oven chips and asked to try both products in a rotated order of trial in a self-completion survey on a computer screen. The survey results are based on participants’ answers to the question, “Of the two mayonnaise products that you have tried, which one was the creamiest?”. They were not told which mayonnaise brand they were trying.
In response to the question “Of the two mayonnaise products that you have tried, which one was the creamiest?”, 49% selected the product code for Heinz, 47% selected the product code for Hellmann’s, and 4% selected ‘no difference’. Statistical analysis of these results was carried out to a confidence level of 95% (which is in line with best practice for making statistically significant claims) and substantiates the claim that Heinz Seriously Good Mayonnaise is as creamy as Hellmann’s.
I don’t like Mayonnaise. Oh, also, comparative advertising is, in the words of RUN DMC “tricky“. So tricky, in fact, that when you see some comparative advertising on the side of bus on a sunny day in Dublin, you write a very long blog post about it.
If you have any Food Law, Agri Law or Intellectual Property Law queries, please feel free to contact Brian Conroy on 01 6393000. Mayonnaise lovers not welcome.