The battle of the toothbrushes, between P&G and Philips

In April 2018, the District Court of Rotterdam ruled on the toothbrush skirmish between Philips and P&G. P&G compared its Oral-B electric toothbrush with Philips’ DiamondClean toothbrush in its advertising campaign. You've guessed it: Oral-B sparkles, it's "the best" and it "cleans better". The Philips model is shown in black, literally put in the shade. Philips was not amused, and demanded the campaign should be stopped at the provisional relief court.

Let's look into the theory for a moment. Comparative advertising is permitted, on condition that it isn't misleading, compares product features objectively and doesn't sully the competitor's reputation or belittle it. The advertiser has the burden of proving that the comparison is correct and complete. Quite a laundry list of requirements to meet, but comparative advertising is still possible!

Philips argued that it was unnecessarily derogatory to depict its manual toothbrush in black. P&G explained that it wanted to focus the spotlight on the Oral-B toothbrush, and that it had only created a shadow effect for the Philips toothbrush. The judge agreed: the shadow effect had a purpose and was not belittling. P&G went on to show, using a number of studies, that the information in the commercial was factually correct. The judge also examined the disclaimer in the promotions in detail. As a general rule, a person with normal eyesight and reading ability should be able to read the text. Specifically for bus shelter sized posters, the disclaimer has to be legible from a distance of a couple of metres. The judge thought it was going too far to suggest that a car driver, passing a poster at 50 kph, should be able to read the reference.

In short, P&G did its homework thoroughly and the comparative advert was allowed. What does this tell us? Clean with an electric toothbrush, which really does clean better (than an ordinary manual one!)

Dominique Geerts