GIANT BATTLE: A lawsuit FedEx Corp. has filed against UPS Inc. over one of the Georgia-based company’s ubiquitous whiteboard ads remains pending in federal court in Memphis. Meanwhile, FedEx also has created its own parody of the whiteboard ad series, which features actor Andy Azula. -- IMAGE COURTESY OF THE MARTIN AGENCY

Shipping rivals FedEx Corp. and UPS Inc. will be back in Memphis federal court July 13 for a routine scheduling conference related to a lawsuit over a television commercial.

FedEx, the Memphis-based shipping giant that employs about 33,000 people in the city, took the Georgia-based package delivery company to court in May over claims made in a UPS TV ad. The ad was taken down, and the delivery foes are squabbling over whether the litigation should be dismissed.

The TV ad at the center of the legal flap is one of several UPS spots that feature a man with long hair drawing simple illustrations on a whiteboard, and it’s become a touchstone of sorts for measuring relations between the two companies.

Watching closely

The ad is part of a series of UPS TV spots. By now, many people have seen the parody ad FedEx created as a send-up of the UPS concept.

But what’s not as obvious is that one of those whiteboard ads also is the subject of the lawsuit FedEx filed against UPS.

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Some people might regard commercials as the chance for a snack or restroom break, or they might Tivo a broadcast and skip the commercials altogether. Lawyers apparently study them very closely, down to the fine print sometimes across the bottom of the screen.

The suit with which FedEx slapped UPS May 1 in U.S. District Court for the Western District of Tennessee faults one of the whiteboard ads on several grounds, including its reliance on what FedEx says is an outdated survey. And in what could be viewed as an indicator of the intensity with which the two giants clash, FedEx soon after unveiled its parody of the popular ad series.

In early June, FedEx went live with Brownbailout.com, the centerpiece of a multimillion-dollar public relations campaign targeting UPS. Prominently displayed on that Web page is FedEx’s send-up of one of the whiteboard ads, in which a man with flowing hair makes a few sketches and decries UPS as a “huge shipping company with a virtual monopoly on package delivery.”

Important words

Meanwhile, FedEx last week filed a 21-page response in opposition to UPS’ motion to dismiss the lawsuit over the original whiteboard ad.

One of FedEx’s main lines of attack continues to be the timeliness of the phrase “just ranked the most reliable” in the UPS ad.

“If you’re looking for a shipping company who really understands today’s economy, you’d want one that’s helped customers through 20 recessions, had over 400,000 employees worldwide, over a hundred years’ experience and was just ranked the most reliable,” the TV ad in question told viewers. “Well, that would be UPS.”

The basis of the UPS ad was a survey of shippers by the Morgan Stanley investment firm. FedEx believes the November survey methodology was flawed.

It also takes issue with UPS mentioning the claim it was “just ranked” on the basis of a November survey.

“The November 2008 survey could not establish the proposition in the mid-March 2009 ad that UPS was ‘just’ ranked when the November 2008 survey was conducted some five to six months earlier,” reads FedEx’s response in opposition to UPS’ motion to dismiss the lawsuit.

UPS claims its TV ad in question only made a claim that was based on the findings of an independent party.

“The advertisement makes a literally true claim – that according to the November 2008 Morgan Stanley Parcel Return Survey, UPS was just ranked most reliable,” reads UPS’ most recent filing in the case. “A factual statement reporting a verifiable event is not the same as an advertising superiority claim based upon scientific proof.”

UPS’ concept for the ad appears to have been a success. Numerous parodies – albeit on a smaller scale than the one FedEx created – have been uploaded to YouTube since UPS started running the TV ads.

Andy Azula, the actor in the UPS ads, is creative director at the Martin Agency in Richmond, Va. He was one of the agency’s executives who pitched the concept to UPS.

Azula recently told The Wall Street Journal he gets recognized most everywhere he goes and that strangers often ask him to draw them something.