UNFAIR COMPARISON LANDS MICROSOFT IN HOT WATER

The BBC reports that the Advertising Standards Authority has rapped Microsoft over the knuckles for making deceptive comparisons with Linux software. In a magazine advert, Microsoft claimed that "Linux was found to be over 10 times more expensive than Windows Server 2003" as part of its “Get the Facts” campaign. It backed this claim up with independent research. However, the ASA found that the comparison was made by running the Linux software on more expensive hardware than was necessary and this could have influenced the outcome of the analysis. Microsoft must now change its adverts.

The IPKat wonders whether the same result would have been reached if, instead of an action being brought before the ASA, Linux had brought an action for trade mark infringement. Although under s.10(6) of the Trade Marks Act 1994, parties are able to use trade marks to identify their competitors’ goods in comparative advertising, the use must be in accordance with honest practices in industrial and commercial matters. In cases such as as BA v Ryanair though, the courts have taken a liberal approach to what counts as honesty, stating that consumers expect a degree of exaggeration in advertising campaigns and they don’t expect a straightforward exact like-for-like comparison of goods or services that function entirely identically. Both of these factors are the things that tripped Microsoft up before the ASA.

1,000 more exaggerations here, here, here, here
More unfair comparisions here, here and here