Walking the regulatory tightrope: A legal assessment of comparative advertising in Nigeria

In crowded consumer markets, every brand is competing not only for sales but also for belief. Products promise to be brighter, cleaner, and long-lasting, and each seeks to persuade consumers that its promise is worth trusting. But competition has a curious way of changing the language of persuasion; many businesses find that speaking about themselves is no longer enough. The temptation is to look beyond their own products, towards those of a rival, and invite consumers to compare.

The distinction between comparison and disparagement is therefore critical. There is a meaningful difference between: “ Our detergent removes 20% more stains than Brand X, based on independent testing ” and: “ Brand X leaves your clothes dirty. Use the detergent that actually works .” The first seeks to establish an objective difference; the second attacks the competitor and creates a very different risk.

The Nigerian illustration is Sterling Bank’s campaign of 20 July 2018, which depicted an astronaut enthroned among the logos and buildings of competing banks. It went viral, and rivals answered in kind. Union Bank commented, “ Heading to the moon without a spacesuit… journey mercies. ” First Bank replied that “ what an elder sees while sitting, a child cannot see even if he travels to the moon. ” Access Bank contrasted Sterling’s “One Customer” positioning with its own ten million customers. The campaign reproduced competitors’ registered marks and premises without permission. Five days later, on 25 July 2018, Sterling withdrew the material and apologised to the banks concerned. The key consideration in this illustration is that referencing a competitor’s mark requires careful assessment of the mark, the manner of use and the message conveyed.

1. Is the competitor identifiable? A competitor need not be expressly named; distinctive branding, packaging, slogans or other contextual cues may make the target obvious to an ordinary consumer.

2. What exactly are we claiming? Claims such as “better”, “cheaper”, “faster” or “No. 1” require a clear and objectively defensible basis.

3. Can we prove it? Testing and supporting data should exist before the campaign goes live, not after a complaint arrives.

4. Are we comparing or disparaging? The campaign should demonstrate the merits of a product without attacking a competitor.

5. Are we using the competitor’s intellectual property? Names, logos, packaging, slogans and product images must be reviewed before they are used.

In either situation, early legal input is often the difference between a campaign that creates competitive advantage and one that creates an expensive problem.

Marvis Oduogu is a Team Lead in the Fast-Moving Consumer Goods (FMCG) Sector at Stren & Blan Partners, Chibudike Anene is a Senior Associate while Vincent Ozoaniamalu, Eniola Alayo and Adetomiwa Fowowe are Associates in the same sector.

Stren & Blan Partners is a full-service commercial Law Firm that provides legal services to diverse local and international Clientele. The Business Counsel is a weekly column by Stren & Blan Partners that provides thought leadership insight on business and legal matters.