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Jewish World Review Sept. 4, 2001 / 15 Elul, 5761

Sean Carter

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Consumer Reports


Can't beat the competition? Sue, baby, sue!


http://www.jewishworldreview.com -- THERE is an old adage that, to succeed in business, all you need to do is build a better mousetrap. Well, the market for mousetraps must be shrinking faster than the number of female applicants seeking intern positions with Gary Condit, because companies in the 21st century are taking a different approach --- "if you can't beat 'em, sue 'em."

Take the case of the nation's No. 3 retailer, Target Corp., filing a lawsuit against the No. 2 retailer, Kmart Corp., over its "Dare to Compare" campaign.

As part of this campaign, each Kmart store posts a sign in its windows comparing the price of specific items in its store against the prices of those items in other stores, including Target. Not coincidentally, Kmart's prices are always the lowest. In fact, a typical "Dare to Compare" sign may read something like this:

Evian @ Kmart -- $1/ton
Evian @ Target -- $100/ounce
Evian in the Sahara Desert --- two camels and a wife
You Save at Kmart!!!!

Target complains that these signs regularly contain false and misleading information. The company claims the signs regularly misstate Target's prices and even invent prices for goods that Target doesn't sell. Also, Target charges that very often Kmart misstates its own prices.

In short, Target claims that Kmart is misleading the public through false advertising in violation of federal and state law. As a result, Target is seeking an injunction against Kmart from making any reference to Target in this campaign. It is even rumored that Target is also seeking the address of Kmart's Evian supplier.

Of course, Kmart counters that Target is just being a sore loser. "It is unfortunate when a competitor has to resort to needless, costly litigation when they discover that they are falling behind in pricing in the retail arena," Kmart said in a statement.

It will probably take several years (and several millions of dollars in attorneys' fees) to sort out the truth. However, Kmart does admit that its "Dare to Compare" campaign "may not always be flawless."

This may be the biggest understatement since the captain of the Titanic said, "Oops! I think we nicked that iceberg." In fact, if Kmart managers make only half of the mistakes made by their cashiers, there is a good chance that all of the "Dare to Compare" signs are wrong.

After all, Kmart employees, and Americans in general, are not known for their mathematical prowess. In fact, handing a $20 bill to any retail cashier is the equivalent of taking a trip to Las Vegas, only riskier. For instance, if your purchase at Kmart totals $10.57, you may receive anywhere from $2.57 to $843 in change.

And this assumes that you simply hand the cashier a $20 bill. If you try to get cute and give the cashier $20.07, then the cashier will hand you a form to fill out so that Kmart can calculate your change and send it to your great grandchildren.

Nevertheless, Target was wrong for bringing this lawsuit. In its complaint, it alleges that Kmart's misstatements are likely to cause harm to Target's business. This is ridiculous!

Kmart's "Dare to Compare" signs are placed in the windows of its stores. This means that the only way for a consumer to see these signs is to go to Kmart. Once in a Kmart parking lot, a customer's first concern is to get inside the store as fast as possible so as to avoid being seen by his neighbors. As a result, the "Dare to Compare" signs have little or no effect.

Besides, it is not Kmart's "Dare to Compare" campaign that prevents many of us from shopping at Target, but rather Target's "Dare to Strip Search" campaign conducted by its door monitors. It is annoying and insulting to have my receipt inspected upon leaving a discount store. In fact, if I am going to steal from a store, it is going to be from a store that carries merchandise I'd actually want to own.

Moreover, considering that the average age of a Target door monitor is deceased, are their efforts really effective? As you know, the monitor's job is to read the receipt and make sure that I have paid for everything in my carriage, including my 4-year old (he was "on sale"). But the numbers on the receipt are really small and eyesight is not known to improve with age. In fact, my last inquisitor would have had trouble reading the receipt even using the Hubbell telescope.

More importantly, the judge should reject Target's claim because its proposed remedy would have a detrimental effect on the marketplace in general. Target is asking the court to stop Kmart from making any reference to Target in the campaign. If the court agrees, consumers will be cast back into the advertising world of the 1970s.

If you are old enough to remember (but not too old to remember), advertisers in the 1970s would never mention their competitors by name. Instead, they would compare their products to those of "Another Leading Brand" or "Brand X." This allowed the advertiser to make outrageous claims about the superiority of its products because none of its competitors could complain that they were being specifically disparaged.

The result was that commercials in the 70s were often more exaggerated than Al and Tipper Gore's kiss during the Democratic Convention. In one popular paper towel commercial, for instance, the advertiser would illustrate how its brand of paper towels could pick up spills the size of Lake Michigan while "Another Leading Brand" of paper towels would disintegrate with fluctuations of the barometric pressure.

Hopefully, the judge in this case will be wise enough to spare us this fate. And if we are really lucky, then perhaps the judge will even do something to quell Target's security efforts, or at least, allow me to return my 4-year old for a full refund.



Sean Carter is a practicing attorney, stand-up comedian and humor writer. Comment by clicking here.

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© 2001, Sean Carter