Archive for the 'Competition and IP' Category
April 16, 2013
Yesterday, the Competition Bureau announced that the Federal Competition Tribunal had dismissed its 2011 abuse of dominance application against The Toronto Real Estate Board (see: Competition Bureau to Review Competition Tribunal Ruling). For an overview of the case see: here.
March 12, 2013
Earlier today, the U.S. Federal Trade Commission (FTC) issued revised Dom Com Disclosure guidelines (see: FTC Staff Revises Online Advertising Disclosure Guidelines). From the FTC:
“… the new FTC staff guidance, .com Disclosures: How to Make Effective Disclosures in Digital Advertising takes into account the expanding use of smartphones with small screens and the rise of social media marketing. It also contains mock ads that illustrate the updated principles. Like the original, the updated guidance emphasizes that consumer protection laws apply equally to marketers across all mediums, whether delivered on a desktop computer, a mobile device, or more traditional media such as television, radio or print. If a disclosure is needed to prevent an online ad claim from being deceptive or unfair, it must be clear and conspicuous. Under the new guidance, this means advertisers should ensure that the disclosure is clear and conspicuous on all devices and platforms that consumers may use to view the ad. The new guidance also explains that if an advertisement without a disclosure would be deceptive or unfair, or would otherwise violate a Commission rule, and the disclosure cannot be made clearly and conspicuously on a device or platform, then that device or platform should not be used.”
Some of the specific topics addressed by the FTC’s new guidelines (the Canadian parallel of which are the Competition Bureau’s “Internet Advertising Guidelines” – i.e., Application of the Competition Act to Representations on the Internet – which have not been substantively updated in a few years) include: proximity and placement of disclosure; use of hyperlinks; effective disclosure before purchase; disclosure in new media (i.e., where there are space constraints); distracting elements and the overall context of advertising; multi-media; and understandable disclosure for consumers.
For a copy of the FTC’s new guidelines see: .com Disclosures.
March 12, 2013
Earlier today, as part of its Fraud Prevention Month efforts in March, the Competition Bureau announced its Top 2 on “2 Good 2 B True Day” scams: false online testimonials; and mobile “subscription traps”.
With respect to false testimonials, the Bureau highlighted concerns with testimonials that appear to be from unbiased individuals, but in fact are paid-for endorsements (or malicious or fraudulent).
Under the Competition Act, false testimonials can be challenged where they are either literally false or misleading (under the general civil or criminal misleading advertising provisions of the Act). The Competition Act also includes a standalone testimonials section that makes it reviewable conduct to publish a testimonial for a product unless the person publishing it can establish that: the testimonial was previously made or published; or was approved with permission to make/publish it.
The Bureau has also raised concerns in the past with false or misleading testimonials. For example, in its pamphlet False or Misleading Representations and Deceptive Marketing Practices the Bureau says: “[u]nder the civil regime, the general provision prohibits all materially false or misleading representations. [and] “other provisions specifically prohibit … untrue, misleading or unauthorized use of tests and testimonials …” These guidelines also offer the following testimonial-related guidance for advertisers: “[d]on’t use the results of product performance tests and/or testimonials in your advertising unless you are authorized to use them; or if you are authorized to use them, don’t distort test results or the scope of testimonials”.
As for “subscription traps” – which the Bureau defines as “techniques designed to make consumers register for recurring fees for goods” – the Bureau emphasizes situations where products appear to be free (when charges apply) or where there are hidden or difficult to understand conditions (or refunds subject to conditions). This particular scheme has been an issue, among others, in a number of traditional marketing fraudulent directory scams in recent years (e.g., deceptive fax spam).
The Bureau’s Backgrounder issued with its announcement also includes other tips for consumers to avoid these scams.
Both of these fraud techniques discussed by the Bureau are consistent with its recent and ongoing enforcement priorities in the advertising and deceptive marketing areas, which include a focus on the web and new technology (particularly mobile), increased pressure to clearly disclose the total price of products, heightened scrutiny of disclaimers and hidden conditions and as well consistent enforcement based not only on the literal meaning of claims but also the overall “general impression”.
For copies of the Bureau’s announcement and Backgrounder, see: here and here.
March 11, 2013
Well It’s Spring Break I’m told, I’m in Toronto (which today alas is a bit gloomy and rainy like Vancouver where I’m often sitting) and so I had some time to read a few papers and cases over the past few days. I saw this paper today on my daily sweep of the web and thought that it was rather good and an interesting and clear summary of U.S. trade-mark rules and doctrines. This new American Antitrust Institute (AAI) paper discussing the intersection of antitrust and trade-mark laws also makes a number of interesting arguments for more restrained trade-mark enforcement and registration policies (in favor of competition), as well as potential Sherman Act and other arguments to challenge overbroad attempts to enforce trade-mark rights. In all, quite an interesting and worthwhile read I thought in a daily sea of data and developments. For a copy of the paper see: here. Abstract:
“A trademark can be not only a word or logo, but also a color, sound, three-dimensional object, and many other nontraditional items. Corporations are increasingly seeking nontraditional trademark protection instead of or in addition to traditional patents and/or copyrights. They are also enforcing both traditional and nontraditional marks more aggressively and in ways that may lead to significant foreclosure effects. This working paper argues that these trends may raise serious competition policy concerns that should play an important role in the evolution of trademark law. For instance, trademark registration and enforcement should be subject to the same antitrust constraints as other “ordinary” kinds of business conduct.”
February 27, 2013
This new global text on unfair competition caught my eye on my sweep of the web today: International Handbook on Unfair Competition, which includes chapters on major jurisdictions including Canada, the U.S., Australia, U.K., Brazil, China and a number of others. Abstract:
“Written by a worldwide team of experts, this new work surveys and comments on the unfair competition laws of the world’s leading economic powers. Following a standard pattern, each chapter introduces the reader to the latest developments in each jurisdiction, highlighting the ways in which the basic legislation and case law relates to enforcement issues, and how unfair competition laws fit with wider considerations of consumer protection and within prevailing intellectual property and competition law frameworks.
Each of the country reports follows the same standard structure: Background and General Approach to Unfair Competition Law; Legal Basis of Unfair Competition Law and Relations to Neighbouring Areas of Law; General Considerations; General Clause Against Unfair Competition; Marketing; Protection of Competitors Against Unfair Trade Practices; Specific Protection of Consumers Against Unfair Trade Practices; Enforcement.”
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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January 9, 2013
Last Friday, Industry Canada released highly anticipated (well at least in Internet, advertising and competition law circles) new draft regulations relating to the impending new Canadian anti-spam legislation (CASL). The new draft regulations, among other things, expand on some key terms in the legislation, clarify some exceptions existing in the legislation and add several new exceptions. These include sending commercial electronic messages to enforce a legal right, an exception for some types of referrals and for electronic communications sent within a company (or between companies in an existing business relationship).
December 5, 2012
In interesting and wide ranging comments given earlier today in Vancouver, as a prelude to published remarks, the Interim Commissioner of Competition John Pecman discussed current Bureau priorities, some key enforcement trends and gave some indication of future policy direction at the Bureau.
Perhaps appropriately, the Interim Commissioner began his remarks by noting that today, December 5th, has been designated by the Indian based NGO CUTS International as “world competition day” (with this year’s topic being designated by CUTS as the impact of cartels on the world’s poor).
Some highlights from the Interim Commissioner’s remarks included:
Enforcement. An overarching theme of today’s discussion in Vancouver was a continued focus on enforcement and an unwavering willingness by the Bureau to commence litigation (though underscored throughout the talk by a message that the Bureau continues to be interested in collaboration and dialogue). While the Interim Commissioner said that the Bureau’s default is generally to work collaboratively, the Bureau will continue not to hesitate to litigate. The Interim Commissioner also spoke about a desire to return to some of the “bread and butter” priorities of the Bureau in both the criminal and deceptive marketing areas. Interestingly, the Interim Commissioner indicated that despite recent Federal budgetary cuts, the Bureau was working toward enhancing its internal litigation capabilities.
Consultations & New Guidelines. The Interim Commissioner indicated that the Bureau would be commencing consultations with the competition bar in Canada in the new-year, as well as stakeholders, business groups and procurement groups to amplify and clarify several key areas, including the Bureau’s Immunity and Leniency Programs and electronic document production. The Interim Commissioner also indicated that the Bureau would be working towards issuing new price maintenance guidelines, FAQs for unilateral conduct and new general guidelines on Bureau enforcement. The Interim Commissioner also suggested a desire by the Bureau to move away from issuing advisory opinions in individual cases toward a focus on published materials (i.e., guidelines).
Maxzone. With respect to the recent decision by Chief Justice Crampton in the Maxzone case, the Interim Commissioner indicated that the decision both sends a strong message that serious white-collar crime conduct akin to fraud should be appropriately punished (including by increasing recommendations for prison sentences) while other aspects of the decision were less workable practically, for example Chief Justice Crampton’s suggestion that defendants should work to achieve restitution with plaintiffs prior to plea agreements (which can delay criminal investigations). In this regard, the Interim Commissioner commented on the existing partition between private actions and criminal enforcement, saying there already existed a mechanism for restitution (section 36 of the Competition Act – the provision under which private civil actions in Canada are commenced). Overall, however, Mr. Pecman described the ongoing shift of Canadian courts toward sterner sentencing and recent Criminal Code sentencing amendments eliminating conditional sentences for cartel and bid-rigging offences as a “sea change” to how competition law offences are treated in Canada.
November 8, 2012
The Canadian Intellectual Property Office (CIPO) will be hosting a series of roundtable discussions across Canada, including in Gatineau/Ottawa, Halifax, Montreal, Edmonton and Toronto from November 14th to December 12th on intellectual property issues for small and medium-size enterprises. From CIPO:
“CIPO will host a series of roundtable discussions with small and medium sized enterprises (SMEs) to better understand their challenges and barriers in using the IP system. These discussions are taking place as part of CIPO’s regulatory and mandate reviews, and will assist in developing new products and tools to better serve SMEs.”
For more information, including cities and dates, see: CIPO invites innovative SMEs to participate in roundtable discussions.
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
