Few words in the advertiser's dictionary have the alluring effect of "New." It jumps off the shelf (or out of the web browser) at the consumer and hints that something exciting, innovative, and maybe even trendsetting can be discovered just by reading further, learning more, clicking here, or calling now. That's why the NAD's decision earlier this week recommending that Sprint abandon its ubiquitous "America's Newest Network" slogan got us thinking that perhaps a refresher on "new" advertising is in order.
The NAD has long applied a general rule that "new" claims should only be made for a period of six months after national introduction. For products previously or already on the market, the term "new" can be re-used (for six months) so long as the product being described has undergone a material change or substantial reformulation from its traditional or previous makeup. Small or isolated changes to particular attributes of the product will not justify using the term "new" to describe the product as a whole if the underlying function, properties, or core services remain the same. However, advertisers may use "new" to describe recently added properties or functions if the term is expressly limited to those particular attributes.
Incremental rollouts, in which a product or service is introduced across the nation on different dates, do not justify an exception to the general six-month rule. In such circumstances, the advertiser must ultimately determine when its incremental rollout has become sufficiently widespread to begin claiming that the product or service as a whole is "new." This involves some marketing strategy because once the advertiser begins making "new" claims, it will have only six months to do so.
In the Sprint case, T-Mobile challenged Sprint's signature advertising that its network is "new," "all new," "brand new," "built from the ground up," and "America's Newest Network." The NAD concluded that a reasonable take away from Sprint's "new" claims was the unsupported message that Sprint's "new network," which is "built from the ground up," included new cell towers around the country. The NAD also determined that Sprint's use of the term "new," which began in September 2013, was no longer timely under NAD's general six-month rule despite the fact that Sprint was still in the process of introducing new network elements.
Additionally, the NAD determined that Sprint's "America's Newest Network" claim conveyed an implied message that Sprint's "newest" network is superior to competing networks because it is the most recent network to be built. According to the NAD, "[i]n the category of technological products, where consumers have come to expect constant innovation, it is reasonable for consumers to understand 'newest' as a reference to the latest (i.e., state-of-the-art) technology." Based on record evidence, the NAD concluded that Sprint had failed to show that it is "the latest wireless carrier to build a new network, [or] that Sprint's network is superior to other wireless networks." The NAD reasoned that because "wireless networks are all composed of a unique combination of spectrum, cell site locations, wireless protocols, hardware, software, and cabling which have different origination dates, . . . there is no objective basis by which to measure which network is the 'newest.'"
What's the lesson to be learned? Next time your business wants to promote a product launch with "new" advertising, remember to mark your calendar for six months and include appropriate limitations if the added feature is only a minor modification to an existing or previous product.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
