We were approached by one of our existing clients, a provider of a popular HR management software. 

Our client had recently published an article on its website comparing its HR management software with the HR management software of its competitors. 

One of these competitors took issue with the article. It wrote to our client, citing: 

1. Trademark infringement

2. Defamation

3. Breach of advertising law 

    The competitor sought the immediate removal of the article and substantial compensation.

    Challenge

    Approaches by competitors’ legal departments in respect of aggressive advertising is not uncommon. 

    The challenge is assessing whether it makes sense to continue publishing the article in question in view of the legal costs of assessing whether our client would have the right to do so. 

    In light of the tone of the letter, it was unclear whether the competitor would have been satisfied with just the removal or the article or if it was serious about pursuing the claim. Of course, claimants have equal cost considerations in advancing claims – it may not always make sense spending time over relatively minor issues such as competitor advertising. 

    Process and Insight

    We discussed the merits of potentially resisting the claim versus the cost considerations. 

    Given the minor importance that the article had to our client’s advertising strategy, it was entirely content with removing the article. The concern then was agreeing to do so in such a way that wouldn’t encourage the competitor to push for more. 

    Solution

    We carefully crafted correspondence that reserved our client’s rights to defend itself whilst at the same time agreeing to remove the article. 

    As part of this, we also conducted research into the competitor’s own advertising. It turned out that it had been engaged in the same comparative practice – negating its own arguments about infringement, defamation and breach of advertising laws. 

    This approach quickly resolved the matter, with no further action taken. This avoided our client having to spend a significant amount in legal costs and/or compensation over unimportant advertising. 

    If you have engaged in comparative advertising and have received similar complaints, or if a third party has mentioned your product in a similar way please do not hesitate to get in touch.