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All’s fair in love and war?

It’s not often that a spat between two competitors goes to the High Court and it’s not that often that the resulting case helps to clarify or even make principles of the law of the land. But a couple of weeks ago two of the construction industry’s giants managed to do just that.

Insulation manufacturers Kingspan and Rockwool finally got judgement on a case which has been in the making for nearly three years.

The case relates to a series of marketing activities carried out by Rockwool during 2007 and 2008 to demonstrate the differences of the two company’s products in respect of combustibility.

The issues addressed by the ruling are pretty complex and are not just about infringement of trademarks. The suitability of materials in certain circumstances as well as the appropriateness of tests to ISO standards is very much at the core of the dispute.

Although the headlines resulting from the judgement portray Kingspan as the winners, the final ruling and decisions on damages etc are not due for another month yet. Therefore it is not yet time for me to comment on the outcome of the case and what it means to the marketing profession.

But it is well worth watching out for, as the case has further clarified the law in respect of trademark infringement in situations of comparative advertising.

However, the argument between the two companies does highlight the fine line between giving your view on the performance of different products and appearing to be just having a pop at someone.

Certainly there is a place for comparative marketing. It is endemic that the marketing profession has, and will always, look for an angle which promotes their products and services in ways that perhaps over-emphasise their performance or gloss over their weaknesses (I am not suggesting that this is the case in the dispute between Kingspan and Rockwool, by the way).

Sometimes this can be done in such a way that the consumer finds it difficult to form a clear and true opinion as to the suitability of the product to meet their needs.

The question that I am wrestling with though is this: is it right that the competition should inform the market of another way of looking at a product?

I have always tried to work by the rule that the consumer will respect the company that focuses on what it has to offer them. I can remember watching TV ads where one brand of lawnmower was telling me that I shouldn’t buy a competitor brand because they are not very good for a variety of reasons. I can also remember thinking that I should be the judge of what I want to buy.

In the case between Kingspan and Rockwool, both companies have very good products that are required to insulate our built environment. Both companies have an important part to play in helping achieve a safe, comfortable low-carbon future. And both companies work very hard to ensure that their products meet the needs of the market and satisfy the relevant standards or specifications.

The case between them shows that the task of comparing alternative materials is legally complex and that there is a fine line between explaining an alternative view of the performance of a competitor’s products and breaking the law.

So, while we are waiting for the final outcome from the courts, it is clear to me that any marketing that is going to involve comparison with the competition should be thoroughly checked out with the legal guys before you do it.

Ian Exall is marketing manager at shower manufacturer Aqualisa and a committee member of CIMCIG, the Chartered Institute of Marketing’s Construction Industry Group


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