Archive for the 'News' Category
Carswell is publishing a new IP and advertising law related text entitled Intellectual Property Perspectives on Marketing and Advertising (Henry Lue).
From Carswell:
“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. Intellectual Property Perspectives on Marketing and Advertising 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.”
For more information see:
Carswell – Intellectual Property Perspectives on Marketing and Advertising
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Earlier today, the Australian ACCC published a rather fine new video entitled “The Marker” to raise criminal conspiracy (cartel) awareness. At 16 minutes, a must for competition/antitrust law geeks. From the ACCC:
“Australian Competition and Consumer Commission chairman Rod Sims today announced the next part of an integrated strategy to prevent cartel involvement – release of The Marker, a short film that shows the devastating effects involvement in a cartel can have on individuals and businesses.”
Here is a link to the ACCC’s new video: Australian ACCC – The Marker video.
Interestingly, according to the Australian competition authority, the ACCC, recent Australian research into cartel activity found that more than half of business people do not know that cartel conduct (i.e., price-fixing, market division/allocation, output restriction agreements and bid-rigging) is a criminal offence and almost 1 in 10 business people said they would be likely to engage in cartel conduct if the opportunity presented itself.
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For more information about our regulatory law services: Contact
For more regulatory law updates follow us on Twitter: @CanadaAttorney
CANADIAN CONTEST RULES/PRECEDENTS
Do you need contest rules/precedents
for a Canadian contest?
We offer many types of Canadian contest/sweepstakes law precedents and forms (i.e., Canadian contest/sweepstakes law precedents to run common types of contests in Canada). These include precedents for random draw contests (i.e., where winners are chosen by random draw), skill contests (e.g., essay, photo or other types of contests where entrants submit content that is judged to enter the contest or for additional entries), trip contests and more. Also available are individual Canadian contest/sweepstakes precedents, including short rules (“mini-rules”), long rules, winner releases and a Canadian contest law checklist. For more information or to order, see: Canadian Contest Law Forms/Precedents. If you would like to discuss legal advice in relation to your contest or other promotion, contact us: Contact.
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I am in the habit of doing a daily media sweep for Canadian regulatory law developments. Yesterday, a few contests being run by Canadian companies caught my eye, one, involving social media related follows and blog comments by entrants for a chance to win a prize, unfortunately for lacking many of the key elements for a Canadian contest.
In a recent case that I can only describe as bizarre, the U.S. Federal Trade Commission has announced that it has filed false advertising charges against the marketers of “Your Baby Can Read!”, a learning program for toddlers that, according to the FTC, was “widely touted” on the Internet teach young adults (er babies actually) to read.
In making the announcement, the FTC said:
“The FTC complaint charges Your Baby Can, LLC, its former CEO, and the product’s creator with false and deceptive advertising, for claims in ads and product packaging that the program could teach infants and toddlers to read and that scientific studies proved the claims. The complaint also charges company principal and product creator Robert Titzer, Ph.D, with making deceptive expert endorsements. Your Baby Can and Titzer represented that the program taught children as young as nine months old to read; gave children an early start on academic learning, making them more successful in life than those who didn’t use it; and that scientific studies proved these claims, according to the complaint.”
The defendants in this case, it seems, were also industrious marketers, marketing their product in various channels including online (YouTube, Twitter and Facebook), television (infomercials and cable ads on Lifetime, Discovery Kids, Disney DX, Cartoon Network and Nicekelodeon) and retail (including Wal-Mart, Kmart, Walgreens and Toys “R” Us).
With all the recent buzz in Canada around disclaimers, the general impression test and performance claims (including the recent Bell, Nivea, Richard v. Time, Yellow Page Marketing and ongoing Rogers cases), this one caught my eye as a rather perfect storm of allegedly false claims, underlying scientific testing with some expert endorsements thrown in for good measure.
The U.S. Federal Trade Commission has announced that a Puerto Rican pharmacy cooperative has settled price-fixing charges in relation to allegations that pharmacy owners, through a cooperative, had negotiated, entered into and implemented agreements among its member pharmacies to fix the prices on which they contracted with insurers and pharmacy benefit managers.
In making the announcement, the FTC said that the pharmacy cooperative’s actions over the past five years had led to higher prices for Puerto Rico’s health care consumers, and that the cooperative consisted of approximately 300 pharmacy-owner members owning more than 350 pharmacies in Puerto Rico (about one-third of Puerto Rico pharmacies).
Key issues raised by the FTC included collective negotiations by the pharmacy cooperative with more than 10 payers over reimbursement rates, execution of seven “master contracts” on behalf of member pharmacies and threats of collective refusals to supply by cooperative members to achieve higher negotiated rates for the supplying pharmacies.
The proposed consent order in this case includes terms to prohibit the cooperative from entering into or facilitating agreements between or among pharmacies to: (i) negotiate on behalf of any pharmacy with any payer, (ii) refuse to deal or threaten to refuse to deal with any payer, (iii) include any term, condition or requirement upon which any pharmacy deals, or is willing to deal, with any payer, including price terms and (iv) not to deal individually with any payer (or not to deal with any payer) other than through the pharmacy cooperative.
This recent association case caught my eye given that there have been a number of Canadian joint negotiation cartel cases involving associations.
From the Canadian Council of Chief Executives (CCCE):
“On September 24-25, 2012, the Canadian Council of Chief Executives will host “Canada in the Pacific Century”, a conference bringing together leaders from business, government, academia, and other key groups to discuss Asia’s rise and the implications for Canada.”
For the updated Agenda see:
“Emerging technologies, new platforms and evolving digital tools are changing the way audiences consume media, connect with brands and ultimately make purchase decisions. With the rise of smartphones, tablets and social media, today’s empowered consumers are seeking out information, interacting with brands and sharing their experiences. The old path-to-purchase model worked well with traditional media and brick-and-mortar stores: it was linear and predictable, starting with an ad and ending with an in-store purchase. But today’s digital path-to-purchase is non-linear and dynamic, with multiple touch points and interactions: consumers are doing everything from downloading product reviews while they’re shopping, to holding up their smartphones on a street to see where the best restaurants are. It’s a seismic shift that is reshaping the marketing and media landscape.
The 2012 Digital Day Conference, presented by Marketing magazine and the Canadian Marketing Association, will explore how best to navigate this fast-changing world and reach audiences at key points along the new purchase-decision journey. The focus will be on real-world examples, creative solutions and inspiring next steps in social media, mobile, online video, gaming, e-commerce, content creation and more.
Join us for a full day of keynote presentations, workshops and panel discussions featuring media, advertising and marketing leaders from across Canada and around the globe.”
In a curious twist in the growing dispute between the Alberta and British Columbia governments, stakeholders and individuals on either side of the environmental debate, with some political seesawing by the Federal Government thrown in, a British Columbia resident has recently alleged that Enbridge promotional videos for the proposed Northern Gateway pipeline were misleading.
According to media reports, the Vancouver Island resident filed a misleading advertising complaint with the Competition Bureau alleging that Enbridge promotional videos for its proposed Northern Gateway pipeline project omitted more than 1,000 square kilometers of islands along the proposed Northern Gateway tanker route (see e.g.: BC woman files complaint against Enbridge for misleading promotional videos). According to the complainant, Enbridge allegedly “distorted the maps in its promotional videos to erase numerous islands and twisting passages so that [the] tanker route appears much safer than it is”.
To some, it won’t be intuitively obvious why the Competition Act should apply, if true, to omissions of some BC terrain from videos for a pipeline – after all, Enbridge is not selling pipelines or tanker routes to Canadians.
The Competition Act does, however, cast a fairly wide net in terms of what may be false or misleading and a wide variety of claims have been challenged over the years under the “general misleading advertising” provisions of the Act, which prohibit not only false or misleading claims to market products (i.e., goods or services) but also “any business interest”.
In this regard, in one recent high-profile case, Commissioner of Competition v. Yellow Page Marketing, the Ontario Superior Court both reiterated that the Competition Act applies to false or misleading claims made to promote business interests and also that the phrase “business interest” should be liberally interpreted:
“Similar misrepresentations appear in the respondents’ domain names, invoices, reminder notices and letters sent by the respondents. Although the respondents argue that collection efforts after the contract had been completed were not to increase sales, the relevant provision of the Competition Act refers to promoting ‘any business interest’ and not just sales. The phrase ‘business interest’ must be given a wide meaning and collecting money, and threats made in relation to collection efforts, constitute promotion of the respondents’ business interests.”
One of the most colorful, if somewhat older, cases in which the misleading advertising provisions of the Act were invoked to challenge claims in relation to business interests was the Bre-X case. Plaintiffs in Bre-X claimed that that the publication of resource calculations, other data, reports and studies relating to Bre-X Mineral’s Indonesian mining assets breached the criminal misleading advertising provisions of the Competition Act, thereby giving rise to a civil cause of action.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
