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.

Brinsley Dresden, Head of Advertising Law, Lewis Silkin, UK
Daniel Bugler, Head of Advertising Law, Lewis Silkin, UK
Daniel Haije, Partner, Hoogenraad & Haak, advertising + IP advocaten, Netherlands
Andrew Etkind, General Counsel, Garmin, Switzerland

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.

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Netherlands Switzerland United Kingdom Advertising IT June 2015 Vol. 8, No. 31, Spring 2015

Brinsley Dresden

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Brinsley Dresden is a Partner at Lewis Silkin LLP and Head of Advertising and Marketing Law. Prior to joining Lewis Silkin in 1996, Brinsley was inhouse counsel at British Telecommunications plc, providing full time legal support of BT’s advertising function. For many years he has been recognised in Band 1 for Advertising & Marketing by the Chambers Directory, which in 2015 stated ‘The pre-eminent Brinsley Dresden is “correctly viewed as one of the leading advertising lawyers in the country.” Clients place particular value on his ability to diffuse crisis situations, and note that “he's really well connected and super-respected in the industry.” ’

Daniel Bugler

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Daniel Bugler is an Associate Solicitor at Lewis Silkin LLP. Having originally graduated in marketing in 2001, Daniel previously worked as an Investigations Executive and a Compliance Executive at the Advertising Standards Authority and a Compliance Manager at teleshopping channel QVC before deciding to re-train as a solicitor, qualifying in in 2013.

Daniel Haije

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Daniël Haije (+31 20 3053060 / dh@hoogenhaak.nl) was admitted to the bar in 2004. Chambers Europe recommends him as a "rising star in IP, advertising and media law". He advises and litigates on advertising-related matters and IP law, especially trademarks and trade names. Furthermore he provides discrete pre-publication or pre-broadcast advice to companies and individuals exposed to unwelcome press intrusion. Clients include celebrities, advertising agencies and companies in the sectors FMCG, entertainment, navigation, communication, aviation, fashion, and charity.

Andrew Etkind

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Andrew Etkind joined Garmin International, Inc. as general counsel in February 1998 and became vice president, general counsel and secretary for Garmin Ltd. in August 2000. Prior to Garmin, he served as senior attorney for Alumax Inc., an aluminum manufacturer, from 1996 to 1998. Before that he was vice president, general counsel and secretary for Information Management Resources Inc., a software systems development and consulting company. Etkind holds bachelor’s, master’s and L.L.M. degrees from Cambridge University in England and a J.D. degree from the University of Michigan Law School.

Lewis Silkin

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Lewis Silkin LLP is recognised as a leading firm in the fields of Advertising & Marketing Law, with unrivalled strength in depth along with unparalleled experience of all aspects of advertising and marketing work. The firm works with a wide variety of both advertiser and agency clients, as well as technology companies, new media and digital agencies, advising on all aspects of traditional and newly emerging marketing techniques, in any media and on any platform. Lewis Silkin is the member for the United Kingdom of the Global Advertising Lawyers Alliance.

Garmin

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Garmin is a leading worldwide provider of navigation and communication devices. Garmin has five primary business units, auto/mobile, aviation, fitness, marine, and outdoor recreation. Garmin designs, develops, manufactures, markets and distributes a diverse family of handheld, wearable, portable and fixed-mount GPS-enabled products and other navigation, communications, and information products. Garmin has more than 11,000 associates in 35 offices worldwide.

Hoogenraad & Haak, advertising + IP advocaten

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Hoogenraad & Haak (www.hoogenhaak.nl) is an independent boutique law firm based in Amsterdam. The firm counsels international and domestic corporate clients, mainly operating in the advertising, food, retail, fashion, entertainment and design industries. Hoogenraad & Haak is widely recognised as the pre-eminent firm for advertising law in the Netherlands, and is the Dutch member of the prestigious Global Advertising Lawyers Alliance (GALA). The firm can also boast a high profile broad IP practice, counselling clients such as Royal Ahold. In addition, Hoogenraad & Haak is one of only a few Dutch firms truly specialising in health, beauty and food law.

Lewis Silkin

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Lewis Silkin LLP is recognised as a leading firm in the fields of Advertising & Marketing Law, with unrivalled strength in depth along with unparalleled experience of all aspects of advertising and marketing work. The firm works with a wide variety of both advertiser and agency clients, as well as technology companies, new media and digital agencies, advising on all aspects of traditional and newly emerging marketing techniques, in any media and on any platform. Lewis Silkin is the member for the United Kingdom of the Global Advertising Lawyers Alliance.

Netherlands Switzerland United Kingdom Advertising IT June 2015 Vol. 8, No. 31, Spring 2015

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