In a high profile campaign HMV claimed to be “Top Dog” for music downloads. But if more songs were available on iTunes how could this be? The Advertising Standards Authority analysed the true meaning of the highest canine claims and arrived at a mixed verdict.
Topic: Outdoor
Who: The Advertising Standards Authority
Where: December 2005
When:
What happened:
HMV was hauled up before the Advertising Standards Authority over a poster headlined "Now we are top dog for music downloads too". Text in the poster stated "The easiest way to download the greatest range of digital music."
The complainant believed that a competitor of HMV had a larger catalogue of download music and an 80% market share, so objected that the claims were misleading.
In its defence, HMV said that the phrase "The easiest way to download the greatest range of digital music" was to be read as a whole taking into account both the ease of use of the service and the diversity of its range. HMV said it did not intend to imply that it had the largest number of downloads available without qualification.
Subscription/purchase services differentiated
The retailer said its downloading service was different from those such as iTunes. iTunes enabled customers to purchase single tracks and own them permanently. The HMV service on the other hand was a subscription service where, for a monthly fee, customers had access to the provider's entire catalogue for the period of the subscription. HMV argued that this service allowed consumers the ability to easily download a vast catalogue, which would be prohibitively expensive to access via the iTunes model.
In terms of other providers of subscription services in the UK, HMV believed there were only two others and HMV was the only one of the three which had in-store availability (as opposed to just on line) of the software required to use the service. HMV also argued that its payment and registration facilities were more convenient than those offered by other subscription services. In terms of sheer numbers of tracks available on subscription services, HMV said it was in the lead with over 1.3 million tracks compared to 1.2 million or over 1 million from the other category leaders.
"Top dog" claim taken literally?
The ASA considered these arguments and it felt that the headline, read in isolation, was probably acceptable as a play on the well-known HMV branding which was unlikely to be taken literally as a specific claim to download music market leadership.
"Easiest way/greatest range" claims scrutinised
However, the ASA's views on the body copy were rather different. It felt that "The easiest way to download the greatest range of digital music" implied HMV offered a larger range than all its competitors. It accepted that others offering subscription services might not offer as many tracks as HMV, but there was still the iTunes type download services which apparently offered a greater number of tracks. Accordingly, because the HMV claim did not state in terms that it related only to subscription type services, it was felt to be misleading.
Why this matters:
The case underlines that claims to market leadership are always likely to come under scrutiny by competitors and regulators.
The ASA's verdict in respect of the "Top Dog" headline was interesting and might start a new trend in apparently challenge-proof comparative claims. marketinglaw.co.uk's parent Osborne Clarke, for example, could presumably take advantage of its orange feline logo by claiming to be "Top Cat" for marketing law services without fear of successful challenge, although of course the claim would be bomb-proof even if it were capable of being taken literally!
