Oracle responded by arguing that its advertisement was true, represented a customer case study, and that the sophisticated target audience would understand that the claims were based on the experience of only one customer.
The NAD disagreed. It concluded that without additional qualifying information, and considering the context of the entire advertisement, one reasonable interpretation of the challenged advertisement was that all Exadata systems consistently perform 20 times faster than all IBM Power systems. The NAD also stated that even if consumers understood that the challenged claims were based on the experience of one specific customer, the advertisement would be problematic. This is because the use of a “case study” is no different than a consumer testimonial, and Oracle failed to demonstrate that the experience of the one customer – the “European Retailer” referenced in the challenged ad – is an experience that consumers can generally expect to achieve, as required by the Federal Trade Commission’s Endorsement Guides.
As indicated in the FTC’s Endorsement Guides, advertisers must make it clear that (a) either the experience highlighted in the advertisement could be achieved by customers generally, or (b) that the experience highlighted is specifically NOT typical of the experience other customers may have with the advertiser’s product. The NAD thus concluded that the advertising should be changed because, where an advertiser uses a one-time scenario that is not “typical” in its advertising, the claim is considered false unless significant clear disclaimers are included.
For more information on this decision, visit http://www.asrcreviews.org/2012/07/nad-finds-oracle-took-necessary-action-in-discontinuing-comparative-performance-claims-for-exadata-oracle-to-appeal-nad-decision/.
Sent care packages to over 150 men and women serving our country overseas in 2011.
© 2009 - 2013 Kilpatrick Townsend & Stockton LLP | Attorney Advertising |
Prior results do not guarantee a similar outcome.