Comparative Advertising and MTN's GAVET Advertisement

Not many analysts will dispute it if I say the Telecommunications sector is the most competitive industry in Ghana now. Not a day passes without a new product being introduced or a promotion of some sort been introduced by Ghana's mobile phone operators. Just last week alone, Airtel introduced on the market an innovative 2 sim cards with consecutive phone numbers. MTN launched ''MTN Business'', an advisory service for corporate clients. Not to be outdone, Vodafone introduced ''Webbox', where customers can connect and browse the internet on their television sets (TV). All these were launched aside ongoing promotions been run by the operators. Such is the stiffness of the competition. 

Advertising is one communicative tool the operators use to reach their target market. Advertising is generally defined by marketers as ''any paid form of non-personal presentation and promotion of ideas, goods or services by an identified sponsor''. Advertising can take place within many mediums- TV, radio, print, online or direct physical contact. Comparative advertising is defined by online resource wikipaedia as ''an advertisement in which a particular product, or service, specifically mentions a competitor by name for the express purpose of showing why the competitor is inferior to the product naming it''. Yet another text defines it as "an advertisement in which there is a specific mention or presentation of competing brands and a comparison is made or implied". 

One such advert sponsored by MTN currently running on tv is called ''GAVET''. In this advert where the main character is called GAVET, the learned mind can deduce that each letter in the name GAVET is an acronym of the first letters in the name of the six telecom operators-Glo, Airtel, Vodafone, Expresso and Tigo. In addition the main character purports to give a telecom report of the mobile industry in Ghana. To begin with the main character comes dressed in a multi-coloured shirt with the colours of the other five networks. Then armed with five coloured phones to appropriately depict the colours of each telecom operator, the advert attempts to show that the network coverage of the 5 operators is limited and does not cover the entire country. Then a second person appears in a yellow shirt (the brand colour of MTN is yellow) seeking to confirm that MTN network coverage is nationwide and better than all the other networks. A second complementary advert to the first GAVET one is also running on TV but this time, it carries the message that MTN has a better video streaming capability than the other networks.

The GAVET advert belongs to a category of advertisements called 'comparative advertising'. In comparative advertising, the sponsoring company compares its product or service to that of rivals to show weaknesses in the rivals product and confirm theirs as the best. In Ghana, there are many comparative adverts on our TV screens, newsprint and on radio. It is especially popular among detergent makers where the sponsoring company uses say their detergent powder to wash a dirty shirt and it comes out sparkling white. They then use 'other' brands (referring to their rivals) to wash the same dirty shirt but the dirt does not entirely go away. The sponsoring company will then conclude that their detergent is the best. Some comparative adverts do not directly mention their rivals name. They only make inferences to the rivals trademarks or signs. The GAVET advert in my opinion is the most daring one in Ghana's vibrant telecommunications sector. The advert itself is very catchy, innovative and amusing to the neutral mind. 

Many advertisers find it irresistible to say their products are cheaper than their competitors. This is because of its effectiveness and ability to win over customers. But how far will advertisers go whilst risking litigation and the unhappy prospect of having to scrap an expensive advertising campaign? On Metro TVs 'Good Evening' programme last month, the Chief Executive Officer of the National Communication Authority (NCA), the body responsible for regulating the telecom sector, Mr. Paarock Van Percy did reveal and confirm that one of the telecom operators has filed a complaint with the National Media Commission against the GAVET advert. The question that arises therefore is is the GAVET advert unethical? Does it break any fair competition laws? Has it raised the bar of advertising creativity to another level? In order to attempt answering these questions, it will be good to examine comparative advertising experiences from other parts of the world. 

The UK had a set of rules called the Comparative Advertising Directive (CAD) which although did not ban comparative advertising entirely, frowned upon it. However in 2003, the classic case of O2 v. Hutchison 3G UK clarified the rules. In the case itself O2, a mobile phone operator owned the rights to a well-known trademark image of blue bubbles in water which was used to identify its products. Then Hutchison UK, a rival mobile phone operator run a TV advertising campaign which compared the price of its mobile telephone services with those of O2.  The Hutchison advert used the name 'O2' and images of black-and-white water bubbles which although not identical to O2's blue bubbles, was a clear reference to it. The image of O2 and bubbles was followed by Hutchison-related brand signs and the message that certain Hutchison services were cheaper than O2's. O2 did not dispute the accuracy of the price comparison, but it took offence with the use of water bubbles in the advert. O2 argued that it infringed on its trademark and Hutchison need not have used the bubbles to make the comparison in the first place.

The High court referred the matter to the European Court of Justice (ECJ), the highest decision making body in Europe. The ECJ ruled that so far as the advert did not break any of the directives of the UK's CAD, then no fair competition rules were broken. It further explained that individual European countries should deal with future issues by following their respective country's advertising guidelines. So effectively Hutchison won. 

The UK CAD gave four conditions that had to be met before an advert was considered fair:

       •        the advert should not be misleading;

       •        it should not create confusion in the minds of consumers;

       •        it should not take unfair advantage of the reputation of a trademark;

       •        it should not present goods/services as imitations or replicas of goods/services bearing a protected trademark or trade name. 

With us in Ghana and been a British colony, we follow the Common Law system where rules and precedents are set by court rulings. The laws in Ghana on comparative advertising are not clear. My interest in the above case is that comparative adverts are permitted if they are not misleading. Is the GAVET advert misleading? So as catchy and innovative as the GAVET advert is, does it take unfair advantage of the reputation of its competitors?

The thrust of the advert is that MTN is the only network with nationwide coverage in Ghana. The other mobile networks do not have nationwide coverage. The GAVET advert pre-supposes that all other networks can at best cover up to the middle of Ghana. If any mobile network (Vodafone, Tigo, Airtel and Kasapa) can prove that they cover all the ten regions of Ghana, then the GAVET advert is misleading consumers and thus inappropriate.  Indeed, currently Airtel have been running a TV advertising campaign showing the geographical map of Ghana and re-assuring the public that its network reaches all across Ghana. So I am sure this new Airtel advert may be a response to the catchy GAVET claims. 

In the O2 vrs Hutchison case cited above, the complainant, O2 accepted that the facts in the advert were true. That the prices mentioned in the said advert were correct. It only took issue with the use of its trademark-the water bubbles. Thus it seems comparative adverts do not irk so much if the facts presented in the advert are correct. Thus if indeed only MTN covered the ten regions of Ghana, then not much fuss should be made of the advert. If not then complaints and counter adverts are welcome. Many enlightened onlookers will watch the GAVET advert and appreciate its ingenuity and homourous side. However, the many other folks not so enlightened stand to be misled by the message the advert conveys, that is if the claims in the advert are not factual. 

Still in the UK, supermarket giants Tesco and Morrisons filed a complaint with the Advertising Standards Authority (ASA) a few years ago about a comparative advertising campaign run by their competitor Asda. In the said advert, Asda offered 'price guarantees' to consumers promising to pay back the difference in the price of Asda's shopping items if the item was cheaper elsewhere (elsewhere been its competitors). The adverts contained slogans like ''If your grocery shopping could have cost less elsewhere we'll give you the difference-Guaranteed'', ''Buy all of this for less at Asda or we'll give you the difference'' and ''Don't waste money this Bank Holiday. The Asda Price Guarantee means your shopping will cost less than Tesco, Morrison's or Sainsbury's''. 

The ASA ruled that for some adverts Asda clearly showed items that were not included in the price guarantee. But those items were shown alongside the slogan ''Guaranteed'', giving the general impression of a supermarket which included items that were not part of the guarantee, such as non-grocery items. The ASA explained also that the small print in the adverts warning ''exclusions apply'' was not enough to warn consumers about the exclusions so the adverts were held to be misleading. Secondly, the ASA also decided that for some adverts, Asda's price guarantee referred to shopping generally, rather than to specific items. This sought to imply that Asda's items were generally cheaper than its competitors. The ASA held these adverts to be equally misleading. 

 In the United States (US) things are quite different. Under US Law, comparative adverts are permitted. Although assertions made in the adverts have to be truthful, non-deceptive and should be reliably substantiated when demanded. In fact comparative adverts are encouraged by the US regulator as a means of stimulating competition and as an important source of purchase information for the consumer. Some marketers in the US label comparative advertising as ''brand smackdown''. The law even allows you to distinctively use a competitor's trademark and be rude about them. In an old advert for computer chipmaker Intel, an actor compared the power of Intel's machines with those of rival Apple, and then drove home his point by snatching a real apple from a tree and taking a bite out of it (an obvious reference to the famous AppleMac trademark).

Unlike the free reign enjoyed by advertisers in the US, comparative adverts are not welcomed in some other countries. Argentina, Italy, Switzerland, Philippines and Australia have strong restrictions against comparative advertising. They are entirely banned in Japan, China and South Africa.

Coming closer to home, South Africa (SA) provides an interesting scenario. A comparative advertising tussle ensued between mobile phone rivals ''Vodacom'' and ''Cell C'' this year. Vodacom (owned by Vodafone UK) is the market leader in the country whose brand colours were blue and green. In April this year, Vodacom decided to re-brand from its blue and green colours to the red teardrop logo that is identical to its parent company Vodafone UK. The re-branding was launched with an advertising campaign in the media. Then rival Cell C also launched a comparative advertising campaign poking fun at the Vodacom re-brand, saying that it took more than ''a lick of paint to be SA's number one''.

In the Cell C advert itself, South African comedian Trevor Noah walked alongside an old sports car that was half-painted in red and declared "recently, a 17 year old cell network changes their colours. Nice, but what's actually under the hood? He then walks up to a new, black Ferrari saying it took more than a lick of paint to be the number one network in SA. In another advert, Cell C made claims that they were now the leading mobile operator and possessed the most superior broadband network in the country. Vodacom is the market leader by subscriber numbers.

Angered by the Cell C advertising campaign, Vodacom filed a comparative advertising complaint with the Advertising Standards Authorithy of South Africa (ASA). In the complaint, not only did Vodacom accuse Cell C of ''disparaging'' Vodacom's brand and its products, but also said the adverts were dishonest as Cell C was not the market leader and did not have a superior network. The ASA after investigations, gave a ruling a week later in favour of Vodacom and ordered Cell C to cease its comparative advertising campaign with immediate effect. The ASA said the Cell C adverts were misleading.

So comparative advertising has always proved to be a thorny issue in country's with competitive industries. 

The fascinating aspect in all this to me is that Vodacom filed the complaint against its rival on 8th April 2011, and the ASA issued its ruling on 15th April 2011 (exactly within a week). I doubt if a similar complaint was filed on any telecom-related issue in Ghana, the relevant regulatory body in charge can investigate and deliver a ruling in such a quick manner? If indeed any cellphone provider has filed a complaint about GAVET or any such grievance before a regulating authority, can we be hopeful it will be resolved quickly enough? Currently, the Advertisers Association of Ghana are engaged in a legal tussle with the Accra Metropolitan Authorithy (AMA) over the hike in prices of erecting advertising billboards in Accra. It has dragged on for months. I think Ghana needs an Advertising Standards Association just like other countries to resolve advertising disputes arising from the business sector. This body can handle advertising issues from companies, consumers and the general public.

It was heart-warming when a new Ghana Chamber of Telecommunications was established last month. Its Chief Executive Kwaku Sakyi-Addo in an interview with 'Joy Fm' revealed that the chamber "will be a platform for the industry to address disputes. This will be a forum for resolving internal issues''. This is a right step and I hope it is replicated in other sectors too. As various sectors of Ghana's economy grow including the telecoms sector, we will need specific vibrant institutions to regulate them and help them grow.

Competition in the mobile phone sector will increase and comparative advertising am sure will continue to be used by rivals as an effective marketing weapon.  Perhaps GAVET just opened the door to a more colourful telecommunications future!