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When Marvin Spivak wanted an advertising campaign that would set his intellectual property litigation team apart from the competition, he decided to make a bold move. Bold, that is, in the traditionally conservative world of law firm marketing. While the print advertisements that Oblon, Spivak, McClelland, Maier & Neustadt selected weren’t all that flashy, they managed to break new ground, at least when it comes to legal advertising. The ads named some of the firm’s competitors. The Alexandria, Va., firm’s decision to identify other top IP litigation firms � part of the ads’ overall message aimed at distinguishing the Oblon firm from all the rest � is part of a comparative-advertising trend that other law firms are also embracing. “We’re not afraid of our competitors. We’re not afraid to share the spotlight,” says Spivak. Historically seen in ads for such products as beer and dishwashing detergent, comparative advertising tries to place a product or service at the top of the competitive heap. In its strictest form, according to the Federal Trade Commission, it refers to advertising that compares alternative brands by objectively measurable attributes or price and identifies the alternative brand by name, illustration or other distinctive information. The legal industry is relatively new to comparative advertising, says Jay Jaffe, whose advertising firm, Jaffe & Associates, created the Oblon, Spivak ads. And while the comparison-oriented ads that law firms are starting to use seem relatively mild compared to the soft drink or diaper industries, their approach is evolving, he adds. In Oblon, Spivak’s case, the ads are intended to catch the attention of corporations in need of IP litigation services. The ads read: “Always on your IP short list.” Included is a photograph of what looks like a desk in an upscale hotel room. Scattered on the desk are a Palm-type device, a cell phone, reading glasses and, most importantly, a sheet of paper with the shortened names of frequently used IP firms, including “MoFo,” “Howrey” and “Knobbe Martens.” Oblon, Spivak, of course, is also on the list, with a circle drawn around the name. “That’s cute, isn’t it?” says David Feigenbaum, a principal at Fish & Richardson, another firm that appears in the Oblon, Spivak ad. “We perceive ourselves as being on the short list. We’re very flattered.” Fish & Richardson has its own style of comparative marketing, with new ads that take a poke at Fish & Neave, the New York IP firm that was acquired last year by Boston’s Ropes & Gray while continuing to operate under its own name. The Fish & Richardson ad includes a close-up shot of a tropical fish with the words, “The only Fish in the sea” displayed across the photo. It also states, “There’s no one better to navigate IP law.” At least one firm on Oblon, Spivak’s “short list,” meanwhile, isn’t terribly impressed with the marketing strategy. “We wouldn’t do it,” says Christopher Foley, managing partner at Washington, D.C.’s Finnegan, Henderson, Farabow, Garrett & Dunner. “We’re in the top niche among IP litigation firms. This is clearly an effort by Oblon to try and suggest they’re also in that group,” says Foley. Nearly 30 years after the U.S. Supreme Court opened the door to lawyer advertising, firms are increasingly looking for ways to distinguish themselves from their competitors. “Law firms used to take comfort in looking alike,” says Ross Fishman, who operates a legal marketing company in Highland Park, Ill. He says the key to effective advertising are “strong visuals” that match up with the firm’s strategic message. In 2002, the American Bar Association amended its rules on lawyer advertising, which made it easier for firms to run comparative-type advertisements, according to William Hornsby, staff counsel for the ABA Division for Legal Services. Even so, firms can get into trouble if they make factually untrue claims. On the other hand, broader statements such as Oblon, Spivak’s “short list” claim more easily pass muster. Leigh Jones is a reporter for The National Law Journal, an ALM publication affiliated with IP magazine.

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