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June 18, 2015

On June 3, 2015, the Canadian Competition Bureau (Bureau) finalized its new core competition law compliance materials. They are essential reading for corporate compliance officers, senior management and in-house counsel.

In announcing its new Corporate Compliance Programs Bulletin, the Commissioner of Competition said:

“This bulletin seeks to help businesses of all sizes in the development of a credible and effective compliance program, but the updated bulletin pays special attention to small and mediumsized businesses. It is designed to help businesses get the solid information they need to reduce their risk of contravening the law.

A compliance program benefits businesses in two ways: it helps them to identify areas of high risk of contravention of the Competition Act and other laws; and it allows them to determine circumstances where they may be the victim of anticompetitive conduct by other parties.”

The Bureau’s new compliance materials now consist of a competition compliance overview (see here), Corporate Compliance Programs Bulletin, Compliance Programs Pamphlet, three competition compliance fact sheets (see here) and a series of new and recently released compliance videos (see here and here).

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June 18, 2015

Guest Post By John Simpson (Shift Law)

The Federal Court’s recent decision in Red Label Vacations Inc. (redtag.ca) v. 411 Travel Buys Limited (411travelbuys.ca), 2015 FC 19 is the latest in a series of Canadian cases to address the tort of passing off in the context of website domain names and meta tags. And it is a departure from where things had appeared to be headed, at least with respect to “initial interest confusion”.

“Initial interest confusion” is a concept originating in U.S. trademark law. In the Internet context, it refers to when customers seeking the plaintiff’s website are initially attracted to the defendant’s website because the defendant has used the plaintiff’s trademark in a domain name or in meta tags embedded in the defendant’s website. Any confusion that results in the marketplace is limited to “initial interest” because the customers will know that they are on the defendant’s website (not the plaintiff’s) as soon as they get there. This is different from traditional passing off where customers who are initially misled by the defendant’s use of the plaintiff’s trademark remain misled throughout their dealings with the defendant.

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June 12, 2015

Major enforcement agencies, notably in the United States (U.S. FTC) and Canada (Competition Bureau), have been increasingly focusing on misleading online testimonials and disclaimers. In this respect, earlier this week Canada’s Competition Bureau launched a new advertising law publication with the first issue focusing on digital marketing issues (see: here).

These issues have also been a focus of the U.S. FTC, which has recently updated its rules on online endorsements and testimonials. Brian Heidelberger of Winston & Strawn in Chicago has posted a very good “mini law lesson” video of the U.S. FTC’s new position.  Many of the tips are also good practices for Canadian brands and agencies.  Republished with permission.

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FTC Updates Its FAQs on Endorsements
and Testimonials in Social Media

Brian Heidelberger
(Chair, Advertising, Marketing and Privacy – Winston & Strawn LLP)

The FTC has elaborated on its rules on endorsements, making plain that it’s not enough to just link to disclosures about paid endorsements online, to make your disclosures far from the paid action or to otherwise leave things at all unclear. Watch attorney Brian Heidelberger’s brisk walk through the rules: FTC Updates Its FAQs on Endorsements.

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June 11, 2015

The Canadian Competition Bureau has been increasing its advocacy, outreach and compliance efforts since the (relatively) new Commissioner of Competition (John Pecman) took office.

As part of this effort, it appears to be focusing on introducing more new media (and also an increasing range) of communication publications and compliance tools, including business-focused pamphlets, compliance videos, multi-media tools and, most recently, a new advertising law focused publication: the Deceptive Marketing Practices Digest (Marketing Digest).

In reading the Bureau’s new Marketing Digest, several key things struck me that are notable for companies, brands and agencies:

1. A continued increasing focus on the digital economy: Like other major enforcement agencies (notably the U.S. FTC), the Bureau is increasingly focusing on the digital economy.

2. Past and current Bureau enforcement priorities: The Bureau’s Marketing Digest reiterates past and current enforcement priorities for the Bureau – for example, disclaimers, misleading “general impression” issues, failing to disclose the complete price of a product and “drip pricing” (undisclosed additional costs, which is currently at issue with the Bureau’s investigation of several Canadian car rental companies). These issues offer a useful checklist for advertisers, their counsel and agencies to mitigate potential risk.

3. New technologies and enforcement priorities in other jurisdictions: The Bureau’s new publication signals an increasing focus on issues that have emerged as priorities in other major jurisdictions. These include native advertising (e.g., promotional material designed to look like unbiased news articles or headlines) and fake testimonials (i.e., “astroturfing”).

4. Advertising and privacy law: Discussing areas where advertising and privacy law intersect (e.g., behavioural advertising and geolocation).

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June 8, 2015

I am a competition lawyer so, as readers of my blog know, I like competition, a lot. The old adages of free competition (e.g., more choices, lower prices, innovation, etc.) seem to ring more true than, for example, private or public efforts to limit competition in favour of particular incumbents or business models.  In this respects, like many, I have been watching the increasing tussle between ride-sharing technologies and traditional taxi regimes in Canada, North America and elsewhere.

Initially, I was quite captivated by the potential for disruptive new competition to shake up traditional taxi models in the cities where I live and work – i.e., Toronto and Vancouver.  I was initially puzzled and opposed to taxi companies’ and operators’ opposition to these new ride-sharing technologies, based on the assumption that it was somewhat (or greatly) outdated technology and existing regulatory frameworks opposed change and competition (and presumably lower prices and more choice for consumers).

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June 7, 2015

I am a competition and advertising lawyer. For about the past ten years (probably more) I have been working on promotional contests for a wide range of clients – from large consumer products firms, to start-ups and individuals that want to promote their brands in a perennially successful way: contests. They are popular with both brands and consumers.

While contests can vary considerably depending on the type of promotion, where the contest will be run and how it will be promoted, in Canada there are a number of important preliminary considerations to think about.

In general, these typically involve questions relating to the type of promotion, where it will be run (e.g., Canada-wide, Canada excluding Quebec, North America, etc.) and how it will be promoted (e.g., through traditional media, social media, using e-mail etc.). Other key considerations include complying with basic competition, privacy and criminal law requirements.

In this regard, over the past number of years, the following have emerged as important questions for brands, agencies and their counsel to ask before launching a contest:

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