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April 19, 2014

Recently I was asked why an association should have a competition compliance program.  Sometimes I am asked why a company, association or other organization should have a compliance program.  And others, I am asked what a “compliance program is”.  These are both very valid questions. Here I thought I would write a short note on the first question (i.e, the “why”).

The conventional answers to this, or largely the conventional answers, are usually something along the following lines: violation of competition/antitrust laws can lead to severe penalties: in Canada criminal fines of up to $25 million and/or imprisonment for up to 14 years; directors and officers have duties of good faith and care to their organizations, including obligations to comply with applicable laws; a competition law investigation or civil challenge can be very prejudicial to a company’s or association’s brand; and a compliance program can (though of course no guarantee) mitigate penalties in the event of an investigation/challenge.

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April 17, 2014

Guest post by John Simpson
(Shift Law – reprinted with permission)

Canada’s Trade-marks Act is about to undergo its most significant amendments since it was first enacted in 1953. Even the spelling of “trade-mark” will change (to “trademark”).  Trademark practitioners and their clients should take note of the proposed changes (outlined below) as some will be relevant to trademark selection and prosecution strategy and enforcement decisions that should be made before the changes come into effect.

Some of the changes were introduced a year ago with Bill C-8, the Combating Counterfeit Products Act. This legislation, among other things, expands the definition of “trademark” in the Trademarks Act to include scents, colours, tastes and textures that – like traditional brand names or logos – are used to distinguish the trade source of goods or services.  More recently, in January 2014, Parliament tabled three international treaties (the Madrid Protocol, the Singapore Treaty and the Nice Agreement) that each address how trademark owners may obtain trademark rights domestically and internationally.  Then, last week, on March 28, 2014, significant changes to many aspects of Canadian trademark law were smuggled into a federal omnibus budget implementation bill.

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April 16, 2014

Facebook recently announced some new changes to combat News Feed spam (see: News Feed FYI: Cleaning Up News Feed Spam).  In making the announcement, Facebook said:

“The goal of News Feed is to deliver the right content to the right people at the right time so they don’t miss the stories that are important and relevant to them.  Today we are announcing a series of improvements to News Feed to reduce stories that people frequently tell us are spammy and that they don’t want to see. Many of these stories are published by Pages that deliberately try and game News Feed to get more distribution than they normally would.”

According to Facebook, it is targeting three types of spam – namely: “like-baiting” (when a post explicitly asks News Feed readers to like, comment or share a post seeking artificial distribution); frequently circulated content (where photos or videos are uploaded over and over); and “spammy links” (links that trick readers into clicking through to websites containing only ads or a combination of spammy content and ads).

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April 12, 2014

I recently read delivered by European Commission competition head Joaquin Almunia in Brussels on the topic of cartel enforcement (see: Fighting against cartels: A priority for the present and for the future).  He discussed, among other things, recent European cartel cases, fines achieved, cartels in innovation and fast moving markets and recent detection strategies (see highlights at the bottom of this post).

Readers of my blog will know that I find cartel detection and enforcement one of the most interesting, if not the most interesting, aspect of working in the competition law area.  Perhaps it’s the game theory associated with the formation, maintenance and detection of cartels that I find so fascinating.

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April 10, 2014

Parties in price-fixing, market division and other competition/antitrust cartels can go to some fairly extensive lengths to conceal agreements.

While perhaps not Get Smart elaborate, though Maxwell Smart was known as “Agent 86” and his female partner agent “99”, some examples include: secret venues for meetings (or on the fringes of associations); establishing sham industry associations; creating false “covers” for meetings; using disposable mobile phones or home phone numbers; meeting in remote locations; staggering arrivals and departures at meetings; code names for groups, meetings and/or products; and the old classic – “nothing in writing”.

Yes folks, though hard to believe, this stuff happens.  Clearly an off-the-shelf compliance program won’t do much against this.  With respect to code names in particular, I was curious what cartel participants had come up with over the past few years so did a quick search.  Here are a few entertaining “cartel code words” I came up with on my sweep this morning:

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April 10, 2014

The OECD has issued its second call for papers in a paper contest relating to policies including: competition, corporate governance, capital markets and financial services, international investment and foreign bribery.  The OECD’s second “challenge” (its first related to competition policy) relates to the operation of stock markets, a topic being widely debated at the moment.  From the OECD:

“Stock markets have traditionally played a central role in supporting investment financing, growth and jobs. They also allow households to participate in the growth of the economy. However, recent developments in the way that stock markets actually function make it necessary to challenge some of that conventional wisdom. These developments include market fragmentation, increased use of dark pools, high-frequency trading and co-location which some claim have eroded trust in stock markets as a level playing field where all investors have the same opportunities.

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Guest post by Amy Sullivan Cahill
(Stites & Harbison PLLC)

April 9, 2014

False or misleading “likes” or “favourites” have been a topic on my mind recently and one that I have found quite interesting since the recent U.S. Federal Trade Commission’s caution in the Cole Haan Pinterest contest case. In this interesting case, the U.S. FTC raised a question that has been to date mostly been unsettled – namely where the line is between lively participation in a promotion (e.g., “likes”, “pins”, etc.) and deceptive endorsements (i.e., false or misleading undisclosed endorsements).  As such, this recent short note by Amy Cahill caught my eye (reprinted with permission).

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April 9, 2014

TopDog Social Media has posted a new podcast on social media contests entitled Is Your Social Media Contest Breaking the Law (and thank you TopDog for chatting with me about social media contest laws and rules).

Some of the topics discussed in TopDog’s new podcast include:

The 5 most common illegal contest mistakes by businesses running contests online and over social media; Apple’s restrictions on giving away iPads & iPhones; one mistake that cost a business $170,000 in fines; two major components to ensuring your social media contest is legal; some of the basic rules you legally need to include in any contest; some of the legalities surrounding the use of third party materials; a few ways to tell if your advertising may be false or misleading; what you can and can’t legally use information for that you collect in a contest; social networks with the most and least strict policies for contests; some of YouTube’s quirky rule about using entrant information; some of what Facebook expects you to say when you run a contest; how Quebec’s strict rules could provide an opportunity for businesses; and thinking about whether your social media contest is in fact an “illegal lottery”.

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