Advertising, Marketing & Privacy Law Practice

The NAD determined that William Shatner's recurring Priceline Negotiator character did not falsely disparage Travelocity by stating: "So, you've been double crossed by other travel sites and now you want to try the real deal?" In support of its position that this statement is not disparaging, Priceline submitted a consumer perception survey purporting to show that the claim does not actually convey to consumers that Travelocity or other sites "double cross" consumers. In evaluating the advertising, the NAD first noted that an advertiser's right to use humor and hyperbole to tout its product features must be balanced against its obligation to support claims that it may make about the competitor's product, especially when those claims might disparage a competitor. The NAD determined that the survey submitted by Priceline was under inclusive because it failed to consider potential future users of online travel sites, instead focusing entirely on current users. However, the NAD then stepped into the shoes of consumers and determined the claim was not disparaging because it was part of a light-hearted spoof in an overall humorous commercial which did not mention Travelocity by name. The NAD also noted that the reference to being "double crossed" was isolated and the commercial made no reference to how other travel sites double crossed consumers, but instead focused on Priceline's Name Your Own Price service.

TIP: The use of humor and hyperbole in advertising by itself does not relieve an advertiser of the obligation to support claims about a competitor or its products or services, especially when those claims might falsely disparage the competitor.