Canadian COMPETITION LAW

Identity fraud.

RCMP, Identity Theft and Identity Fraud: “Identity fraud is the actual deceptive use of the identity information of another person (living or dead) in connection with various frauds (including for example personating another person and the misuse of debit card or credit card data).”

Identity theft.

RCMP, Identity Theft and Identity Fraud: “Identity theft refers to the preparatory stage of acquiring and collecting someone else’s personal information for criminal purposes. As of January 8, 2010, Senate Bill S-4 became law, making it illegal to possess another person’s identity information for criminal purposes.”

Illegal lottery.

In addition to the standalone promotional contest provision in the federal Competition Act (section 74.06), criminal illegal lottery provisions of the federal Criminal Code also apply to contests in Canada (sections 206 and 207).  These provisions prohibit certain types of gaming activities unless an exemption is available or one or more elements of the relevant offence is removed.  While the relevant provisions of the Code are complex and somewhat archaic, they generally codify, although inconsistently, the former common law elements for illegal lotteries: (i) a prize, (ii) chance and (iii) consideration.

Re: Earth Future Lottery: “… Parliament does not happily abide gaming activities of any sort in Canada.  The little it tolerates, it does so grudgingly.  Section 206 [of the Criminal Code] is prohibitive in nature, not regulatory.  The purpose of Parliament in enacting it was generally to outlaw gaming and lotteries, not just to ensure they would be run honestly.  Subsection 206(1) creates a number of indictable offences proscribing a comprehensive range of gaming and gaming-related activities.  Subsection 206(4) makes it a summary conviction offence to buy, take or receive a lot, ticket, other device mentioned in 206(1).  Although s. 207 allows some tightly circumscribed exceptions to s. 206, it too contains a broad prohibition.  Subsection 207(3) makes it an offence to do anything for the purpose of the conduct, management, operation of, or participation in a lottery scheme unless the doing of it is authorized by or pursuant to some provision of 207.  Thus, even permitted lotteries must strictly adhere to the limits imposed by the terms and conditions of s. 207.”

Canadian Better Business Bureau, BBB Code of Advertising: “No contest, drawing or other game of chance that involves the three elements of prize, chance and consideration should be conducted since it constitutes a lottery [under the federal Criminal Code] and is in violation of provincial statutes.”

For more information about Canadian contest/sweepstakes law, see: Contests, Contests and CASL, Contest FAQs, Contest Tips and Contests and Social Media.

For information about the Canadian contest/sweepstakes precedents (template rules) and checklists that we offer for sale, see: Canadian Contest Forms/Precedents.

Image advertising.

Competition Bureau, Ensuring Truth in Advertising: “The term ‘image advertising’ is used to describe all forms of non-product advertising.  The fact that an advertisement does not specifically mention the advertiser’s product does not automatically transform it from a commercial attempt to expand or retain the advertiser’s market into an altruistic exercise in social responsibility.  To the extent that any such advertisement could materially misrepresent or falsely portray market information, it would be subject to the same prohibitions under the [Competition Act] as are the more familiar product claim advertisements, as long as it promotes, directly or indirectly, a business interest.”

Incentivized network.

A mobile advertising network term.

Canadian Marketing Association (CMA), “The Truth about Mobile Ad Networks”: “Incentivized networks showcase ads that incentivize users to download an app, or complete a call-to-action option dictated by the advertiser in exchange for a benefit (i.e. virtual currency, points towards a reward system, coupons, etc.).  Advertisers have the ability to be particularly specific in regards to the type of mobile applications they run their ads through, and target campaigns by geography, device and demographic.  These networks can be blind or transparent and pricing models are usually performance based (Pay-Per-Install and Pay-Per-Click), where a publisher only has to pay when a conversation/action is executed.”

Indexing.

“Indexing” is an online / Internet advertising term which refers to publishing an article on multiple pages on the web.  Indexing allows for more web space for advertising and also has the additional potential benefit of increasing website traffic (i.e., resulting in more traffic on a website and in particular more “page views”).

Injunction.

An injunction is a type of court order where a court orders conduct to stop, for example, on a temporary or permanent basis.  Injunctions are available to stop conduct under the Competition Act.

See e.g.: TELUS Communications Company v. Mobilicity, 2012 BCSC 1933 (B.C. Sup. Ct.): In the 2009 Telus litigation, it was argued in the Court of Appeal (although not before me) that this Court does not have jurisdiction to grant an interlocutory injunction, as section 36(1) of the Act appears to limit the remedy available to a private party to compensatory damages.  The Court of Appeal concluded at para. 44 that the inherent jurisdiction of the Supreme Court of British Columbia to grant an injunction was not displaced by any of the provisions of the Competition Act.  The Court went on to say this: ‘While we are of the view that the Supreme Court has jurisdiction to grant an interlocutory injunction in a claim brought under s. 36 of the Competition Act, the scheme of the Act, and its concentration on damages as the appropriate final remedy are important considerations for the court in considering whether interlocutory relief ought to be granted.  In particular, the court should be careful in considering whether the plaintiff can make out a case for “irreparable harm” in the analysis of the test for an interlocutory injunction.  [Emphasis original.]’  The parties do not dispute the applicable law [to obtain an interlocutory injunction].  The test has been discussed as both a two-pronged test (British Columbia (A.G.) v. Wale (1986), 9 B.C.L.R. (2d) 333 (C.A.), aff’d [1991] 1 S.C.R. 62; Bell Mobility Inc. v. Telus Communications Co., 2006 BCCA 578, 27 B.L.R. (4th) 194), and a three-pronged test (RJR-MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311).  The first prong is whether the applicant’s claim raises a fair question to be tried.  The cases make it clear that this is a relatively low threshold.  The second prong is whether the balance of convenience favours the granting of the injunction.  One of the factors to be considered in this regard is whether either of the parties will suffer irreparable harm from allowing or denying the application.  In the three-pronged test, irreparable harm is considered separately from the balance of convenience, but in either event we are warned to view the picture as a whole, rather than concentrate on its individual components.  Other factors include, but are not limited to, which of the parties has acted to alter the balance of the relationship so as to affect the status quo, and matters affecting the public interest.  Also to be considered in assessing the balance of convenience is the strength of the applicant’s case, particularly where the extent of in-compensable disadvantage to each party would not differ significantly.  See, for instance, Canadian Broadcasting Corp. v. CKPG Television Ltd. (1992), 64 B.C.L.R. (2d) 96 (C.A.).”

Inquiry.

The Competition Bureau can conduct informal or formal investigations of potential violations of the Competition Act.  Where the Bureau intends to conduct a formal investigation of a matter, it will commence an “inquiry”.  Under section 10 of the Competition Act, the Commissioner of Competition is required to commence an inquiry where: (1) a “six resident complaint” is made under section 9 of the Act (and the application formalities under that section are satisfied), (2) the Commissioner has “reason to believe” that (a) a person has violated an order under the Act, (b) grounds exist to make an order under Parts VII.1 or VIII of the Act (deceptive marketing and reviewable matters) or (c) an offence under Parts VI or VII has been (or is about to be) committed (criminal offences) or (3) where the Minister of Industry directs that an inquiry be commenced.  The significance of the Bureau commencing an inquiry is that once initiated, the Bureau has a number of enforcement powers available to it including obtaining section 11 orders (compelling an oral examination, the production of records and/or a written return under oath), wire-taps or search warrants (which can be obtained in relation to both criminal offences and civil “reviewable matters” under the Competition Act).

Competition Bureau, Complaint Process (Bureau website): “For complaints under the Competition Act, the information will be examined to determine whether a formal inquiry should be commenced. All inquiries are conducted in private. If an inquiry is opened, the Bureau may contact other customers or competitors to obtain more information.  During the inquiry stage, Bureau staff may use many tools at their disposal to determine the facts of the situation. They can apply for authorization from a court to search premises, examine or seize records, and question witnesses under oath.”

Instant rebate.

Competition Bureau, Enforcement Guidelines, Consumer Rebate Promotions (2009):  “Consumers receive the rebate at the time of purchase.  The rebate is generally available to anyone who purchases the product, without further condition.”

Instant win contest.

A type of contest in which entrants are immediately notified whether they have won (as opposed to, for example, waiting for notification by e-mail, phone or mail).

For more information about Canadian contest/sweepstakes law, see: Contests, Contests and CASL, Contest FAQs, Contest Tips and Contests and Social Media.

For information about the Canadian contest/sweepstakes precedents (template rules) and checklists that we offer for sale, see: Canadian Contest Forms/Precedents.

Insured contest.

An “insured contest” is a contest in which a contest promoter has obtained insurance to cover the, usually remote, possibility that a winner wins a significant prize where the odds of winning are significant (i.e., in which it is unlikely that any entrant will win).

For more information about Canadian contest/sweepstakes law, see: Contests, Contests and CASL, Contest FAQs, Contest Tips and Contests and Social Media.

For information about the Canadian contest/sweepstakes precedents (template rules) and checklists that we offer for sale, see: Canadian Contest Forms/Precedents.

Intellectual property.

Intellectual Property Institute of Canada (IPIC): “Patents, trade-marks, copyright, industrial designs and similar rights are referred to as ‘intellectual property’.  These rights are ‘property’ in the sense that they are based on the legal right to exclude others from using the property and in that ownership of the rights can be transferred.  The rights are ‘intellectual’ in the sense that they protect intangible subjects, usually arising out of some form of human creativity.   Patents protect inventions, such as machines, devices, methods and compositions of matter.  Trade-mark rights protect words, designs, numbers, two-dimensional or three-dimensional forms, sounds or colors (or a combination of two or more of these elements) used to distinguish the products or services of one trader from those of others in the marketplace.  Copyright protects literary (including computer programs), artistic, musical and dramatic works.  Related rights include trade secrets, industrial designs, integrated circuit topographies, plant breeders’ rights, and personality rights such as the right to the image.”

Interactive video ad.

A mobile app advertising term.

Canadian Marketing Association (CMA), “The Truth about Mobile Ad Networks”: “Video ads that combine sounds, visuals and touch screen capabilities that engage users from launching a mobile application, clicking on a banner, etc. Videos may feature a call-to-action, whereby the user can exit out of the app to find more information about the ad.”

Interest-based advertising (IBA).

Association of Canadian Advertisers: “Interest-based advertising (IBA), or online behavioural advertising, is the collection of online data and web-viewing behaviours from computers or devices over time and across non-affiliate websites designed to predict user preferences or interests in order to deliver ad messages based on those inferred preferences.  With IBA, benefits accrue to advertisers (effective and efficient means of reaching potential consumers), publishers (they receive premium rates that allow them to continue to provide quality content for free) and consumers (who receive more relevant advertising).”

Internal do not contact list.

Canadian Marketing Association, Code of Ethics and Standards of Practice: “A list of current customer, consumer or business contact information of those persons or businesses who have requested that they not be contacted by the marketer’s organization.  It is used to cross-reference and purge that information from any list to be used for any marketing campaign by that organization.  Often referred to as an ‘internal deletion list’, this Code requires that internal do not contact lists must be maintained by every organization that markets for every channel by which they market and that the information must be retained on the list for three years.”

Interstitial ad.

A mobile app advertising term.

Canadian Marketing Association (CMA), “The Truth about Mobile Ad Networks”: “Interstitial ads are interactive ads that are placed within an app, where the ads are showcased during app engagement.  A common example of an interstitial ad would be an ad placed between game play (like Words with Friends).  Commonly, with news literature apps, an interstitial ad may execute after launching the app and before accessing the article.”

Inventory loading.

Section 55.1 of the Competition Act makes pyramid selling schemes a criminal offence.  Section 55.1 defines a pyramid selling scheme as a multi-level marketing plan (as defined under the Act) that has one or more prescribed features, including knowingly supplying product to participants in commercially unreasonable quantities (i.e., “inventory loading”).

Competition Bureau, Enforcement Guidelines, Multi-level Marketing Plans and Schemes of Pyramid Selling: Sections 55 and 55.1 of the Competition Act (2009): “Paragraph 55.1(1)(c) of the [Competition Act] defines a scheme of pyramid selling as those situations in which an operator or a participant in an MLM plan supplies products to participants in amounts that he or she knows are commercially unreasonable.  In other words, there can be no inventory loading.  The amount considered ‘commercially unreasonable’ is based on considerations such as: the type of product; the selling price of the product; the size of the market; the number of participants; the number of competitors; and the sales history of the products.”

Goldman, C.S. and J.D. Bodrug, eds., Competition Law of Canada, 2 volumes, looseleaf (New York: Juris, 1988 – ): “It is also contrary to the [Competition Act] for an operator to supply a product to the participant in amounts that are commercially unreasonable.  This is a practice known as inventory loading.  The determination of what is commercially unreasonable will be based on such factors as the type of product, the selling price, the size of the market, the number of participants, the number of competitors and the sales history of the product.”

Investment Schemes.

Canadian Department of Justice, Report of the Canada – United States Working Group on Telemarketing Fraud (Updated December 1, 2011): “Victims are sold ‘investments’ in a wide range of merchandise or securities that appear to offer high profit-margins.  The fraud lies in misrepresenting the true value (or actual existence) of what is being sold, and/or the true extent of the risk in buying it.  Common ‘opportunities’ have involved stocks or securities, investment-grade gemstones, precious or strategic metals or minerals, and business opportunities such as oil and gas ventures, pizza ovens, and ostrich farms.  These schemes commonly defraud victims more than once (see ‘reloading’, below).  Once funds have been committed, the victim can be induced to make additional payments to increase the value of the ‘investment’ or avoid its loss (e.g., ‘margin calls’).  Since legitimate investments normally tie up assets for extended periods, victims often do not realize for some time that they have been defrauded.”

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SERVICES AND CONTACT

We are a Toronto based competition and advertising law firm offering business and individual clients efficient and strategic advice in relation to competition/antitrust, advertising, Internet and new media law and contest law. We also offer competition and regulatory law compliance, education and policy services to companies, trade and professional associations and government agencies.

Our experience includes advising clients in Toronto, across Canada and the United States on the application of Canadian competition and regulatory laws and we have worked on hundreds of domestic and cross-border competition, advertising and marketing, promotional contest (sweepstakes), conspiracy (cartel), abuse of dominance, compliance, refusal to deal and pricing and distribution matters. For more information about our competition and advertising law services see: competition law services.

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For more information about our firm, visit our website: Competitionlawyer.ca

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