Archive for the 'Competition and IP' Category
The American Bar Association Section of Antitrust Law has recently published the most recent edition of its Antitrust Law Journal (see: Antitrust Law Journal (Volume 77, Issue 3)).
The current issue includes articles on antitrust and innovation (Herbert Hovenkamp, B. Zorina Khan, Tom Nicholas), patent tying, price discrimination and innovation (Christopher R. Leslie), licensing negotiations in standard-setting organizations (Richard J. Gilbert), patent holdup (George S. Cary, Mark W. Nelson, Steven J. Kaiser and Alex R. Sistla) and several antitrust and IP articles.
On February 15, 2012, an $18,000 “administrative monetary penalty” or “AMP” was imposed by the CRTC on a British Columbia telemarketing company, Imperial Data Supply Corp. (“Imperial”).
The Commission found that six telemarketing calls were made to consumers that were (or should) have been on Imperial’s internal do not call list, violating the Unsolicited Telecommunications Rules, and that six fax telemarketing calls were made without being registered with the Do Not Call List.
The CRTC has the legislative authority to impose AMPs on any telemarketer that violates the Unsolicited Telecommunications Rules. The maximum penalty for a violation is $1,500 (for individuals) and $15,000 (for corporations). Violations that continue for more than a day are separate violations.
In making the decision, the Commission also considered whether Imperial had established a due diligence defense (subsection 72.1(1) of the Telecommunications Act provides a defense for a person in a proceeding relating to a violation to show that they exercised due diligence to prevent the violation) and whether the amount of the AMP imposed was reasonable.
In rejecting Imperial’s due diligence defense, the CRTC found that while it made submissions regarding the occurrence of periodic errors, and took the position that they were not systematic, it had failed to submit any evidence of reasonable steps or business practices to prevent the violations. The CRTC also pointed to notifications by Commission staff for Imperial to renew its registration and its continuation to make telemarketing calls after the expiration of its registration.
With respect to the amount of the AMP, the CRTC noted that the financial health of a company is not a relevant factor in determining whether to impose (or reduce) a penalty and refused to reduce the AMP imposed in this case. The Commission pointed to, among other things, evidence of notifications of Imperial’s obligations to maintain an internal do not call list under the Unsolicited Telecommunications Rules and its failure to do so.
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CANADIAN CASL (ANTI-SPAM LAW) PRECEDENTS
Do you need a precedent or checklist
to comply with CASL (Canadian anti-spam law)?
We offer Canadian anti-spam law (CASL) precedents and checklists to help electronic marketers comply with CASL. These include checklists and precedents for express consent requests (including on behalf of third parties), sender identification information, unsubscribe mechanisms, business related exemptions and types of implied consent and documenting consent and scrubbing distribution lists. We also offer a CASL corporate compliance program. For more information or to order, see: Anti-Spam (CASL) Precedents/Forms. If you would like to discuss CASL legal advice or for other advertising or marketing in Canada, including contests/sweepstakes, contact us: contact.
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February 19, 2012
In December 2010 Canada’s new anti-spam legislation was passed (the “Anti-spam Act”) which will, when it comes into force, be one of the strictest anti-spam regimes in the world (see: Anti-spam Act). Canada had been criticized prior to its passage as being the only G8 nation without stand-alone anti-spam legislation. In general, the Anti-spam Act will require express or implied consent for the sending of “commercial electronic messages” and will also impose certain form (i.e., disclosure) and opt-out (i.e., unsubscribe) requirements.
The ABA International Antitrust Law Committee has published a new January 2012 newsletter entitled: “Hot Topics”, with an article on the economic aspects of MOFCOM’s review of Seagate’s acquisition of Samsung’s hard disc drive business (see: China Highlights Economic Analysis in Decision Approving Seagate Acquisition of Samsung HDD Business). The Committee’s “Hot Topics” series allows practitioners to opine on recent developments in their jurisdiction.
About the ABA International Antirust Law Committee:
“The Committee is an international network of antitrust practitioners and officials from many jurisdictions, including those with established and developing antitrust regimes. We provide a unique forum for practitioners and others with an interest in antitrust to learn about antitrust developments around the world as they happen, influence international antitrust policy and laws, and connect with an interesting and fun group of professionals from all corners of the globe.
During this 2011-2012 ABA year, we plan to build on our platform of award winning programs, publications and policy initiatives we have pursued in prior years. Our Committee’s success would not be possible without the energy, inspiration and involvement of our members and we welcome new suggestions and innovative ideas. As a member of this Committee, you will enjoy the unique opportunity to build your own network of antitrust colleagues around the world. One of the best aspects of the Committee is that we always encourage new faces, ideas and contributions; you can quickly become an integral part of what we do.”
The International Antitrust Law Committee also publishes an active listserve, annual Year-in-Review and an Essentials of Merger Review project, an ongoing Committee project that provides an online resource for practitioners to learn the “essentials of merger review” in key antitrust jurisdictions around the world. The Committee has posted reports for 40 jurisdictions
The Committee also reports that it intends to turn its Essential of Merger Review project in to a hard-copy publication and is starting a similar on-line project for country-by-country information on cartel investigations.
The Committee will be holding its Spring Meeting in New York from April 17 to April 21.
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For more information about our regulatory law services contact: contact
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The Interactive Advertising Bureau of Canada (IAB) will be holding a series of marketing courses across Canada in March and April 2012:
Private Action Update: Lack of Injury to Competition Dooms Real Estate Multiple Listing Service Case
With all the recent activity in the real estate services sector in Canada, which has included cases brought by the Competition Bureau against The Canadian Real Estate Association (CREA), The Toronto Real Estate Board (TREB) as well as the ongoing Realtysellers private action challenge of CREA and TREB, the recent U.S. MLS case note by Stein, Mitchell & Muse LLP below caught my eye.
(For more about the Canadian real estate cases see: Hearing dates set in The Commissioner of Competition v. The Toronto Real Estate Board, Realtysellers lawsuit against CREA and TREB survives motion to dismiss, Competition Tribunal grants CREA leave to intervene in TREB abuse of dominance case, Competition Bureau amends its abuse of dominance case against The Toronto Real Estate Board).
The case, in which an internet-based real estate agent’s case against a multiple listing service, an association of real estate brokers and competing real estate agents was dismissed, involves interesting association and intellectual property law related issues.
The plaintiff’s case was ultimately unsuccessful based on a failure to adequately plead and show antitrust injury. The District Court for Minnesota held that, like Canada, where actual damage or loss is a prerequisite to commencing a private civil action under the Competition Act, that the law was clear that antitrust standing requires a showing of antitrust injury, which is injury of the type the antitrust laws are intended to prevent and which flow from that which makes the acts unlawful.
By William Wu (Centre for Innovation Law and Policy)
Google has announced its new privacy policy, which will take effect on March 1. Google is doing away with the over 60 different existing privacy policies for its various products and replacing them with one single shorter and simpler privacy policy.
Those who are most affected by this change are people with Google accounts. Under the new privacy policy, if a user is signed in to the Google account, Google will be able to collect and combine user information from across its various products and services. For example, Google will be able to collect and analyze your search terms on the Google search engine and suggest related videos when you next go onto YouTube. This will enable Google to form fuller and more comprehensive user profiles. As Google emphasized in its announcement, this change will allow it “to create one beautifully simple and intuitive experience across Google.”
In a significant recent decision by the federal Competition Tribunal, the Tribunal granted leave to the Used Car Dealers Association of Ontario (the “UCDA”) to make a section 75 refusal to deal application relating to a refusal by the Insurance Bureau of Canada (the “IBC”) to supply data to it for one of its products for its members.
This recent case, reasons for which were issued on September 9, 2011, is significant, in that the UCDA was seeking leave to make its refusal to deal application in light of a longstanding adverse decision – the Warner music case.
(Leave from the Tribunal is a prerequisite to making refusal to deal applications to the Competition Tribunal, as well as private applications under the price maintenance (section 76) and exclusive dealing/tied selling/market restriction sections (under section 77).)
In its earlier Warner decision, the Tribunal held that licenses to use and reproduce intellectual property (music in Warner) was not a “product” for section 75 of the Competition Act and also that a license could not be in “ample supply” (two of a number of requirements under section 75), given that a license holder has a right under intellectual property legislation (e.g., the Copyright Act) to decide whether or not to license its IP to third parties.
In light of Warner, it has generally been thought that refusals to license intellectual property could not be the subject of refusal to deal applications under section 75 (or at minimum, that arguments would need to be made as to why Warner should not apply to a particular case, and that this could reduce the likelihood of success of section 75 applications in the context of intellectual property refusals to deal).
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
