NAD Judges Popularity Contest – Advertising, Marketing and Branding

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NAD recently issued a decision in a challenge Zillow brought against Apartments.com involving a comedy campaign featuring Jeff Goldblum. The ruling covers a lot of ground, including some issues that may be unique to the rental market. For today, however, we’re going to focus on an issue that spans industries and comes up frequently. Specifically, we’ll look at popularity claims, such as the advertiser’s “Most popular place to find a place” tagline and some “#1” claims.

NAD noted that “most popular” and “number 1” claims send a powerful message that a brand is preferred over all other brands. Because these messages can have a significant impact on consumer purchasing decisions, NAD reviews them carefully to determine if the evidence matches the claim. In most cases, the best evidence to support these claims is sales data. This was not available in this case because rentals take place outside of party locations. Instead, the parties each presented data on website visitors.

Apartments.com and Zillow have argued over whether “most unique visitors” or “most visits” is a better metric for determining popularity. NAD did not choose either option, concluding that the traffic to the website is not suitable for the “most popular” claims. When an advertiser makes a broad superiority claim, they must support “all reasonable interpretations of their claim.” Since readers could interpret the claim in different ways, the advertiser’s data indicating that it had the most unique visitors was not sufficient to support the claim.

NAD also considered the claim that Apartments.com is “the #1 referral network for homes, townhouses, condos and apartments.” The advertiser has provided evidence comparing the number of registrations on its site and the number of registrations on Zillow. NAD concluded that Apartments.com could support a claim that it has the “#1 ad network” based on ad volume, but recommended that the basis of the claim – ad volume – be clearly disclosed to avoid conveying the message that it is the #1 network based on popularity.

Zillow also disputed the claim that Apartments.com is “the #1 rental network in the nation, with more than 25 million visitors to our sites each month looking for a new apartment.” Although NAD determined that the “25 million visitors” portion of the claim was substantiated, it pointed to its previous conclusion that website traffic was not sufficient to support a popularity claim. As a result, NAD recommended that the advertiser either stop the claim or make “a more limited claim regarding the number of visitors to a website.”

Claims of popularity will always be . . . Good . . . popular with advertisers. And they will always be unpopular with the losing companies in the comparison. If you are considering making a popularity claim, you should generally consult independent sales data for help. While this ruling states that website traffic will not be enough to support a general claim, advertisers still have wiggle room to make more personalized claims. These can still have an impact on consumers, while reducing your risk of dispute.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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