Archive for the 'News' Category
Earlier today, the European Commission published a summary decision announcing the parties and imposing more than 82 million Euros in penalties against nine firms involved in a price-fixing cartel for mountings for windows and window doors.
According to the EC, the parties operated a cartel spanning the whole of the EEA in which they agreed on common price increases for mountings for windows and window doors, which was in place from late 1999 until mid-2007. Also according to the EC, the cartel involved coordination through trade association activities:
“At the occasion of meetings of associations in Germany in November of each year the parties regularly agreed to increase prices by coordinating the amount (percentage or percentage range) and date of the envisaged price increase. There was a common understanding that the price increase agreed for Germany at these meetings was to be applied in the entire EEA, with adaptations to the specific situation of each country to the extent necessary. In addition to the main meetings in Germany in November, regional representatives met to discuss the application of the agreed price increase to their respective territory.”
The vast majority of trade and professional associations (and their activities) serve many legitimate purposes, including promoting common interests to the public, lobbying and advocacy, research, member education and the promotion and improvement of product standards. However, because association activities by definition involve the interaction of direct competitors, they can in some cases raise serious competition law concerns under competition laws, including the Competition Act.
Materials from the 2nd International Competition Law Forum held on September 27, 2012 are being uploaded now. Speakers included the Vice-President, Commissioner of Competition for the European Commission (Joaquin Almunia), private practitioners, the head of the Competition Division of the OECD’s Directorate for Financial and Enterprise Affairs (John Davies), head of the Antitrust and Mergers Unit of the EC (Kris Dekesyser) and UNCTAD and OECD officials. For more information and copies of the conference materials see: 2nd International Competition Law Forum.
A few new Canadian competition, advertising and regulatory law books caught my eye recently including:
The Canadian Marketing Law Handbook, 2nd ed. (H. Lue & S. Punniyamoorthy) (Carswell). See: Carswell – Newly Published.
There are several forms of intellectual property law that are associated with marketing and advertising law. These include patents, trade-marks, copyright and industrial designs. Generally, trade-mark and copyright law have had the most impact when it comes to marketing and advertising issues. The introductory chapters discuss various types of intellectual property law. The remaining chapters provide an IP perspective on advertising and marketing issues including the personality rights, comparative advertising, grey marketing and counterfeit goods, pharmaceutical advertising, Quebec advertising, advertising standards, packaging, Internet advertising and ambush marketing. Canadian Marketing Law Handbook, Second Edition provides a practical handbook as well as an update on the possible remedies that can be used by the legal practitioner in cases involving advertising and marketing issues.
Defamation Law: A Primer (R.E. Brown) (Carswell). See: Carswell – Newly Published.
Defamation Law: A Primer provides basic and concise coverage of the substantive law of defamation. Raymond E. Brown, the author of The Law of Defamation in Canada, 2nd Edition, articulates both the diversity and similarity of the common law of defamation in Canada, Great Britain, Australia, New Zealand, South Africa and the United States. He has included the leading decisions in each of these countries, and quotes extensively from leading jurists. This book also includes a chapter outlining the impact of the United States constitution on the law of defamation, as well as a chapter devoted to recommending a variety of changes in the law.
“Therefore, the argument against Google collapses to the following nonsensical proposition: Google is sacrificing a monopoly profit in general search to gain market share in a more competitive market. This strategy is economic nonsense because it would lower Google’s total profits. In addition, as Google reduces its share in general search, it will reduce its ability to direct consumers to its specialized search products. That behavior is not likely to be profitable. Ultimately, the notion that Google is manipulating general search results to expand its market share in specialized search45 is not plausible. For Google, this practice would entail great risk and little reward. There is no reason to believe that Google is doing anything beyond competing in the search market.”
“The Chicago School of law and economics teaches—and the Supreme Court has long affirmed—that antitrust law exists to protect consumers, not competitors. Penalizing Google’s practices as anticompetitive would violate that principle, reduce dynamic competition in search, and harm the consumers that the antitrust laws are intended to protect.”
In a curious pleading filed in the British Columbia Supreme Court, a Sunshine Coast British Columbia plaintiff has commenced a punitive damages class action against Google for allegedly violating Canadian privacy, misleading advertising, criminal, intellectual property and tort laws in relation to its Gmail webmail service. The thrust of the dispute appears to be centered around allegations that Google intercepted and used information from e-mails sent from non-Gmail users to Gmail accounts for advertising.
With respect to privacy, the plaintiff alleges that Google intercepted, copied, scanned, retained and used private communications sent from non-Gmail users to Gmail accounts to generate free information used for advertising services, committing the tort of invasion of privacy under the British Columbia Privacy Act and at common law.
As for competition law, the plaintiff also argues that Google violated the criminal misleading advertising provision (section 52) of the federal Competition Act (misleading advertising under the Competition Act can be enforced as either a criminal or civil matter under sections 52 or 74.01). The plaintiff’s misleading advertising claim is slightly unclear, but he appears to allege that Google failed to disclose its data collection activities (i.e., interception, copying, scanning and use of private communications), its false or misleading representations were made intentionally (i.e., knowingly or recklessly), they were made to advance its business interests and caused the plaintiff (and other class members) damages.
In an interesting case earlier this week, the CRTC announced that it had taken enforcement action against two India-based firms for breaching Canadian telemarketing laws under the National Do Not Call List (DNCL).
The CRTC ordered Pecon Software Ltd. and Avaneesh Software Private Limited to stop their current telemarketing practices and pay $507,000 in penalties. A parallel investigation in the United States by the Federal Trade Commission (FTC) has targeted 14 corporate defendants and 17 individuals in 6 legal filings (Pecon Software Ltd., Finmaestros LLC, Zeal IT Solutions Pvt. Ltd., Virtual PC Solutions, Lakshmi Infosoul Services Pvt. Ltd. and PCCare247 Inc., as well as a number of individual defendants).
According to the CRTC, in this scam dubbed the “Microsoft imposter” scam, telemarketers from the Indian firms would typically warn consumers that their personal computers were infected with viruses attempting to sell anti-virus software or technical support. The telemarketers allegedly claimed they were affiliated with legitimate companies, including Microsoft, Dell, McAfee and Norton, telling consumers that they had detected malware that posed an imminent threat to their computers, falsely demonstrating an infection then offering to remove the malware for fees that ranged from $49 to $450.
In making the announcement, the CRTC said:
“Foreign-based telemarketers have been put on notice that they must comply with our rules when calling Canadians,” said Andrea Rosen, the CRTC’s Chief Compliance and Enforcement Officer. “Canadians who receive these types of unsolicited calls are encouraged to file a complaint and should never give an unsolicited caller access to their computers or personal information.”
International Cooperation
According to the CRTC, it also conducted inspections as part of its investigation and worked with other international agencies including the U.S. Federal Trade Commission (see: FTC Halts Massive Tech Support Scams) and Australian Communications and Media Authority (ACMA) (see: Global action busts scammers posing as Microsoft).
The ACMA said that this scam, which targeted consumers in Canada, the United States, Australia, Ireland, New Zealand and the U.K., generated almost 10,000 calls to its Do Not Call complaint line over the past two years (and at its peak representing about 50% of all complaints it received). The FTC obtained court orders to stop six alleged tech support scams and has frozen the target firms’ assets.
The enforcement agencies involved in this case are also saying that, in an attempt to avoid detection, the telemarketers used some 80 different domain names and 130 phone numbers.
Regulation of Telemarketing in Canada
Canada’s DNCL is part of the CRTC’s Unsolicited Telecommunications Rules, which include the Telemarketing Rules, DNCL Rules and Automatic Dialing and Announcing Device Rules.
Ok I concede that lawyers are great at making (or at least trying) to make their clients and others believe that the sky is falling, so that you better retain them to advise you or else the world (and their businesses) will surely end. We have all heard many, many warnings by surely very smart, but possibly self-interested counsel, of the risks of not doing X, Y or Z.
Having said that, I came across a rather good recently published note today by David Balto talking about the “Dozen Times to Call Your Antitrust Lawyer” [subtitle: competition/antitrust and IP law issues to watch out for – my phrase]. While clearly also a call to drum up business, this note I thought was really rather good.
The University of British Columbia today announced the launch of “one of the world’s largest prizes dedicated to the international fight against corruption and protecting human rights”: The Allard Prize for International Integrity:
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
