Fighting Back Against Misleading Competitor Advertising: How Garmin Successfully Navigated a Route to Banning Misleading Claims by TomTom in the United Kingdom and the Netherlands.

Abstract

Misleading advertising by a brand's competitors can take many forms. When it uses the 'target' brand's trade marks, and therefore falls within the narrow definition of explicit comparative advertising and potentially of trade mark infringement, the paths of legal recourse are well trodden. However, when the 'target' brand sees a rival striving to obtain a competitive advantage by making claims which it believes to be exaggerated, unsubstantiated, or otherwise misleading, but which do not use the target brand’s trade marks, its options are more limited. Modern technology and the growth of advertising on the internet are also creating new challenges. For example, a brand may have its place of establishment in one country, but its marketing function based in another, from where the marketing claims on its website are controlled. But when a consumer visits that website, with a '.com' domain name, the website can read the consumer's IP address and direct him to the appropriate national sub-site. This will mean the consumer sees pages in his local language, with localised content and prices quoted in the local currency. In that case, where should complaints about that advertising be heard? In the country where the advertiser is 'established' or the one from where its marketing is controlled? But if the advertising is localised, should it be heard in the country where the relevant complainant is based, regardless of whether that complainant is a competitor or a consumer?