Archive for the 'Uncategorized' Category
Howard Ullman (Orrick) has launched a new competition law group on LinkedIn (Competition and Intellectual Property Law):
“The group focuses on intellectual property (IP) law and antitrust and competition law. Although there are some other great LinkedIn groups on various aspects of both IP law and competition law, this group targets the interesting intersection of issues arising from competition in markets involving patents, copyrights, trademarks, and other IP.”
I wish him all the best success!
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On May 25, 2012, the Minister of Industry Christian Paradis announced that the Government had issued a Mediation Guideline to “make formal mediation procedures available under the Investment Canada Act” (ICA) and that the ICA regulations would be amended to gradually increase the threshold for review of investments involving WTO investors to C $1 billion based on enterprise value (increased from the current threshold of C $330 million based on the book value of the Canadian target company’s assets).
In making the announcement, the Industry Minister said:
“Canada has a strong investment climate, and these targeted changes will ensure that our foreign investment review process continues to encourage investment and spur economic growth,” said Minister Paradis. ‘Foreign investment is vital to the Canadian economy. It helps Canadian companies find new capital and enables them to expand, innovate and create jobs for Canadians.’”
Increased Review Threshold
The announced increase to the WTO investor review threshold follows 2009 amendments to the ICA that had not come into force and that were based on suggestions by the Competition Policy Review Panel, which recommended in its final 2008 Report Compete to Win, among other things, that the ICA review threshold be raised to $1 billion (except for cultural businesses) for two reasons.
First, a higher threshold was, in the Review Panel’s view, consistent with an appropriately narrower and “exceptional” test for intervention under the ICA; and second, to align Canada’s foreign investment review regime with Canada’s position that foreign investment is, except in unique circumstances, beneficial to Canada.
The Review Panel also recommended that the test to calculate the review threshold be changed from the current test (based on the book value of the Canadian business’ assets) to an enterprise value test (to more appropriately reflect the growth of knowledge-based industries and intangible assets – e.g., know-how, IP and other intangible assets).
Once the new Regulations are in force (revised Regulations have not yet been published in the Canada Gazette), the WTO review threshold will initially rise to C $600 million (for two years), then to $800 million (for another two years) and then to $1 billion (and then be indexed going forward based on Canadian GDP as is the case currently).
Mediation Guideline
According to the Minister, the new Mediation Guideline is intended to provide a “voluntary means of resolving disputes when the Minister believes an investor has failed to comply with an undertaking”.
Some of the key features of the new Guideline (presumably based, at least in part, on the prolonged litigation relating to the alleged failure by U.S. Steel to comply with undertakings provided in connection with its acquisition of Stelco) include setting out a process for discussions to resolve concerns relating to the performance of undertakings, the discretion by the Minister to accept new undertakings (both within and independent of the new mediation process) and compliance demands (which may be followed by court proceedings).
The new Guideline also establishes a process for the agreed use of mediators as an alternative to “potentially lengthy and costly legal proceedings.”
Revised Regulations for Comment
Original Regulations that were first published when the ICA was amended in 2009 have been revised to reflect comments received and additional changes to the methodology to calculate enterprise value, and will be subject to a 30-day public comment period before final publication.
Report
Industry Canada has also issued a Report on the administration of the ICA in 2009 and 2010 and has announced that it will be resuming its earlier practice of annual reporting. The new Report, the first annual report relating to the administration of the ICA since 1993, includes an overview of the ICA and its administration, discussions of recent policy developments and a summary of activities under the ICA in 2009 and 2010.
For more see:
Industry Canada News Release
Minister Paradis Announces Additional Improvements to the Foreign Investment Review Process
Backgrounder
Proposed Amendments to the Investment Canada Regulations
Mediation Guideline
ICA Report
Competition Policy Review Panel Report (2008)
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by Andrei Mincov (originally posted at Mincov Law Blog)
One of the most common misconceptions surrounding the law of trademarks in Canada is how trademarks relate to trade names. This misconception can have very costly consequences.
Trade names are used to identify a business or a company. Trade names are the “who” of the business. Customers do business with a business bearing the trade name.
Trademarks are used to identify products or services. Trademarks are the “what” of the business. Customers buy products and services bearing the trademark.
In very simplistic terms, customers buy trademarks from trade names.
Every business registered with the Registrar of Companies or incorporated (provincially or federally) has a trade name. But neither the reservation of a corporate name nor the formation of a corporation create a right to use the business name of the corporation in that jurisdiction.
How can that be? The government registers my business name and I can’t use it? Yes. Unfortunately, corporate registries don’t really check if the name submitted for the registration violates any prior rights. In other words, just because a provincial corporate registry approved your name for registration does not mean that you don’t violate someone else’s prior right (in a trade name or a trademark) and that you will not be compelled to change it in the future.
Rights in corporate names are treated like rights in unregistered trademarks, which means that they are nonexistent outside the geographical areas where the business is actually making use of and it known for its name.
Even if you register a corporate name that no one else had thought of before, it does not give you the right to stop others from using it, unless you can prove that other person’s use of the name creates confusion.
Just because you came up with a fancy company name that helps you attract customers for whatever products or services you are offering does not mean that your name, or brand, is a trademark. If you are not using your trade name as a trademark, your don’t have trademark protection for your trade name.
Trade name can be registered as a trademark, but only if you use it as such, that is, to identify products or services. This is often referred to as using the trade name as an adjective, as opposed to a noun.
Let’s say, your company is called Awesome Software Inc. and you make software. If you phrase your marketing materials to say that “Awesome Software Inc. offers such great titles as Text, Calculator and Presentations”, you are using “Awesome Software” as a trade name. If you phrase them to say “We offer Awesome Software™ Text, Awesome Software™ Calculator and Awesome Software™ Presentations”, then you are using “Awesome Software” as a trademark.
The classic example is, of course, Microsoft® Windows®. We don’t buy Microsoft, we buy from Microsoft. But because “Microsoft” is a part of the name of the product we buy (and part of the reason why we buy it), it is also protected as a trademark in its own standing.
If you believe that a substantial number of your customers are attracted to your business because of your trade name, you should consider using the trade name as a trademark and getting it registered as a trademark.
In other words, if you consider your trade name a factor that gives you a competitive advantage, you should not rely merely on registration of the company name with the Registrar of companies. You should accord the asset that you care about the protection that it deserves, and the only way to do it is through registering it as a trademark.
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On May 8, 2012, hearings began before the Competition Tribunal (Tribunal) in the Visa/MasterCard price maintenance case. The case, filed by the Competition Bureau in late 2010, is the first civil price maintenance case to be heard by the Tribunal following amendments to the Competition Act in 2009 that included the repeal of former criminal price maintenance offences.
In brief, the Bureau is alleging that Visa and MasterCard merchant agreements discourage consumers from using lower-cost methods of payment (e.g., cash, debit cards, etc.) and prevent retailers from declining certain higher fee cards, which has led to an increase in card service fees paid by retailers and corresponding higher retail prices for goods and services.
Section 76 of the Competition Act now makes it a reviewable civil practice for a supplier to influence a customer or reseller to raise prices (or discourage the reduction of prices), including by agreement, where the conduct has an adverse effect on competition. While formerly a “per se” criminal offence with no competitive effects requirement, price maintenance is now a civil reviewable practice that allows the Tribunal to make remedial orders – for example, for conduct to stop or in some cases for supply to be resumed – where it is shown that competition has been adversely affected. Private parties may now also make price maintenance applications for Tribunal orders (with leave from the Tribunal).
Some of the restraints being challenged by the Bureau in this case include restrictions on merchants promoting or encouraging the use of credit cards with lower fees, discouraging the use (or refusing to accept) cards with higher fees and requirements to accept all Visa/MasterCard credit cards.
The Commissioner is seeking an order prohibiting Visa and MasterCard from enforcing agreements preventing merchants from encouraging the use of lower-cost payment methods, including rules preventing retailers from discouraging the use of higher-cost credit cards or refusing to accept certain Visa/MasterCard cards.
For more information about the hearings, pleadings and parties’ cases see:
Earlier today, Reuters Canada and others reported that Maple Group has accepted the Ontario Securities Commission’s (OSC) conditions for its proposed $3.8 billion bid for the TMX Group (the OSC’s conditions are subject to a 30-day comment period – see: proposed recognition orders).
In Maple Group’s news release, it said:
“These draft and final orders are the result of extensive consultation by the OSC and AMF with Maple, TMX Group, CDS, market participants, and other regulators – including the Bank of Canada and the Competition Bureau. If these orders are finalized as published, Maple will accept them.
The OSC’s proposed recognition order for Maple also confirms and clarifies the OSC’s extensive ongoing regulatory oversight of equities trading and clearing and settlement activities, including provisions with respect to equities trading fees. These provisions include prohibitions, obligations and approval requirements that are designed to ensure that the Canadian capital market remains open and competitive for all participants, and that the interests of all participants in Canada’s capital markets are respected. As well, the AMF’s recognition orders confirm and clarify the AMF’s extensive ongoing regulatory oversight of derivatives trading and clearing and settlement activities.
The draft and final orders provide important changes in areas such as: independent governance of Maple (as successor parent to TMX Group) as well as fair, meaningful and diverse representation on the Board of Maple; restrictions designed to ensure competitive equities markets; independent governance of CDS; and access to and fees for CDS clearing and depository services. Maple believes the binding commitments to the structure of the transaction and the regulatory landscape, as reflected in the orders, represent substantial changes to the initial proposal in respect of which the Competition Bureau expressed serious concerns.”
With respect to clearance by the Bureau, Maple said that the Bureau has advised it that the draft OSC orders (if finalized) may “materially change” and mitigate its previous concerns:
“As disclosed on April 27, 2012, Competition Bureau staff have provided an update to Maple and TMX Group regarding the status of the Competition Bureau’s review of the Maple transaction.
Staff advised Maple and TMX Group that, while the Competition Bureau has an independent mandate and will complete its own review, it has provided views and input to the OSC for its consideration relating to the potential impact of the Maple transaction on competition. In that context, Competition Bureau staff advised that it is possible that measures contained in the draft OSC recognition orders, if finalized and enforced, may materially change the regulatory environment such that the Competition Bureau’s previously articulated serious concerns may be substantially mitigated. Staff of the Competition Bureau have emphasized that the Bureau would consider both the published draft orders and any finalized orders, and that a final decision would not be made until it had completed its process.”
In the OSC’s news release, OSC Chair and CEO Howard Wetston said:
“The Commission has thoroughly reviewed the regulatory issues raised by Maple’s proposal and developed measures necessary to ensure that the public interest is protected. … Public consultation has been a fundamental part of our review process and we will carefully consider the further input we receive on these orders when making our final determination.”
The proposed behavioural remedy (or rather remedies) in the transaction would include access for market participants, pricing commitments and regulatory oversight of CDS.
The Canadian Society of Association Executives (CSAE) will be holding its annual National Conference and Showcase on November 1-3, 2012 in Ottawa.
We are pleased to be co-presenting a seminar on Practical Competition Law and Compliance Case Studies for Trade and Professional Associations, with the co-author (Mark Katz) of our new associations book:
“Although most association activities are benign from a competition law perspective, they can raise serious issues in a variety of circumstances that occur on a regular basis. This presentation will review the key provisions of Canada’s Competition Act relevant to trade and professional associations and offer practical guidance on how to reduce risk based on a series of practical and interactive case studies derived from actual Canadian and international examples.
The focus of the case studies will be on real-life association activities that can attract liability if not conducted in an appropriate fashion. Issues to be covered include: (i) when will a purely voluntary or suggested fee tariff/schedule become problematic; (ii) ways associations can engage in joint negotiations or advocacy initiatives on behalf of members without raising competition issues; (iii) how associations can reduce the risk of engaging in information exchanges (e.g., research or benchmarking exercises); (iv) how to structure association membership restrictions and discipline procedures; and (v) what to do to distinguish pro-competitive standard-setting from conduct that can raise competition concerns.
The American Bar Association, Section of Antitrust Law has published its April 2012 issue of The Antitrust Source, which includes an interview with (soon to be former) U.S. Acting Assistant Attorney General of the Antitrust Division Sharis Pozen, who will be stepping down at the end of this month. The interview includes a discussion of the U.S. antitrust enforcement agencies’ recently updated Horizontal Merger Guidelines, high-technology markets, remedies and recent U.S. Federal antitrust litigation (although absent is any discussion of the ongoing ebooks case). This issue also includes articles on contracts that reference rivals as an antitrust category and consumer protection enforcement efforts by the U.S. Federal Trade Commission.
The U.S. Department of Justice issued remarks today by Assistant Attorney General (Antitrust Division) Sharis Pozen to the Brookings Institution.
Ms. Pozen’s remarks focus on the “reinvigorated antitrust enforcement” under President Obama in the past three years, including the Antitrust Division’s challenges of mergers (57 mergers challenged, including Tickemaster/Live Nation, H&R Block/TaxAct, AT&T/T-Mobile and the proposed acquisition of NYSE Euronext by NASDAQ OMX Group and IntercontinentalExchange) and criminal price-fixing and bid-rigging cases, including the air cargo, municipal bonds, automobile parts, LCD panel and e-book cases (244 criminal cases with more than $2 billion in fines and 80,000 days of jail time).
Templates/precedents and checklists to run promotional contests in Canada
Templates/precedents and checklists to comply with Canadian anti-spam law (CASL)
