On February 28, 2013, the Advertising, Marketing and Sponsorship Group presented its “Marketing Law News Flashes: Recent Updates and Reminders”. Below is a synopsis of the news flashes from the session.

For clients who were not able to attend our live session, or would like to view it again, you may now access it on BLG U. To access the BLG U website or to request a user account on BLG U, go to blgu.ca. If you have forgotten your password, go to blgu.ca and click on the “Reset your password” link. To locate this particular s, click on Courses/Registration and select Advertising and Marketing. The course name is “Marketing Law News Flashes – 2013”.

Online Behavioural Advertising

Speaker: Robert Deane

In June 2012, the Privacy Commissioner of Canada issued a policy paper on online behavioural advertising. In it she defined online behavioural advertising to mean the “tracking and targeting of individuals’ web activities, across sites and over time, in order to serve advertisements that are tailored to those individuals’ inferred interests.” The policy paper provides some welcome certainty about four key issues, including regarding whether implied or opt-out consent are sufficient. It is an important document to be considered carefully by any website marketer engaged in online behavioural advertising, or who is considering engaging into a contract with a service provider.

Social Media and Defamation

Speaker: LuAnne Morrow

The increasing use of social media platforms to advertise or market businesses gives rise to some unique considerations for companies engaged in this activity. One issue to consider is liability for defamation. Defamatory statements are those  made about an individual or business that would tend to lower that party’s reputation in the eyes of a reasonable person, refer specifically to that party and are published or communicated to at least one other party. In using social media, companies should be sure to avoid (1) the posting of comments that might be considered defamatory, and (2) being considered a “publisher” of defamatory content by allowing users of a website, Facebook page, blog site or other site that posts comments, to post defamatory content. To avoid these pitfalls, businesses should: (1) have internal policies that govern their employees’ use of social media on their behalf, (2) have terms and conditions that govern the use of their websites or blog sites by third parties to ensure that comments may be removed, (3) have procedures in place to monitor and take down objectionable content, (4) take positive steps to react to public criticism, (5) always be mindful of what they say about competitors, and (6) be prepared to take less traditional actions to deal with possible issues that arise. Knowledge of the pitfalls and monitoring of social media platforms used by your business can go a long way towards mitigating your risk of liability for defamation,
while making the most of these new platforms for advertising and marketing.

Promotions and Contests

Speaker: Victoria Prince

There are a number of laws, regulations, guidelines and best practices that apply when running a contest. Besides (i) the Federal Criminal Code, which leads to skill-testing questions and “no purchase necessary” methods of entry, (ii) the Federal Competition Act, which leads to adequate disclosure requirements, and (iii) Québec’s Rules respecting publicity contest, consider privacy, licensing, trademark, advertising to children and defamation issues, third-party guidelines (e.g., Facebook), and specific relevant laws (e.g., a contest involving alcohol). Also critical are reputational issues. Don’t forget that contest rules are like a contract between the sponsor and the entrants, and you want them to be helpful if you need to rely on them. Also remember the general context – statements should be accurate and not misleading.

The Canadian Code of Advertising Standards

Speaker: Eva Chan

Even if you are not a member of Advertising Standards Canada (“ASC”), a consumer, special interest group or another advertiser can complain to ASC about one of your advertisements. ASC will review whether the Canadian Code of Advertising Standards (“Code” ) applies and whether there are reasonable grounds for the complaint to exist. The Code has a number of provisions, including some dealing with accuracy and clarity, price claims, guarantees, comparative advertising, testimonials, superstition and fears, advertising to children, and unacceptable depictions and portrayals, to name a few. Before you finalize your advertisement, consider reviewing it against the Code, or you may find yourself justifying your advertisement to a complainant or ASC, and risk seeing your name in print for contravening the Code.

Misleading Advertising and the Competition Act

Speaker: Renai Williams

2012 was characterised by a high level of activity  with respect to the interpretation and enforcement of the misleading advertising provisions of the Federal Competition Act. As a result of the Supreme Court of Canada’s 2012 decision in Richard v. Time, misleading advertising claims brought under the Competition Act will almost certainly be judged from the perspective of the “credulous and inexperienced consumer” and will be based on the general impression first created by the text and layout of an advertisement. As described by the Supreme Court, the credulous and inexperienced consumer is not particularly experienced at detecting the falsehoods or subtleties found in commercial representations, has less than average intelligence, scepticism and curiosity and is not reasonably prudent, nor diligent, nor well-informed. The Commissioner of Competition has expressed the view that Richard v. Time is directly relevant to the application of the Competition Act, with the result that companies looking to avoid a run-in with the Competition Bureau should exercise additional caution when preparing marketing material. This is especially the case given the Competition Bureau’s aggressive approach to enforcement; an approach that continues to include the pursuit of administrative monetary penalties of up to $10 million. The risk of these penalties is real – in 2012 the Commissioner successfully obtained the highest administrative monetary penalty awarded to date in a contested misleading advertising proceeding (being an award of over $9 million against both defendant companies and individuals). The Competition Bureau has communicated its intent to continue in 2013 to actively monitor and enforce the misleading advertising provisions of the Competition Act, with particular focus on e-commerce, as well as performance and pricing claims.

Anti-SPAM Update

Speaker: Adrian Liu

Canada’s new anti-spam law is expected to come  into force later this year. The law applies to any form of electronic message, including emails and text messages, that have a commercial purpose. If you send any kind of promotional e-mails, this law applies to you and requires you to obtain consent from all recipients. To get ready for this law, businesses need to examine their email marketing practices and distribution lists to determine who they email now and who they may email in the future. More importantly, businesses need to figure out if they have ever obtained consent to send the emails.

Trademark News and Updates

Speaker: Tracy Corneau

In 2012, the Canadian Trademarks Office started to accept applications to register sound marks. Companies are using these non-traditional trademarks (along with adoption and registration of trademarks consisting of shapes and colour) to expand brand protection beyond traditional words, logos or slogans as part of promoting an entire brand experience. Such non-traditional trademarks can provide a competitive advantage and extend protection beyond the life of a patent or industrial design.

Also, effective February 19, 2013 are Health Canada’s new guidelines concerning their review of LASA (look- alike sound-alike) drug product names which companies and their marketing departments and agencies need to review prior to adopting trademarks for these products.

Impact of Amendments to the Copyright Act

Speaker: Hafeez Rupani

Recent amendments to the Federal Copyright Act and recent decisions issued from the Supreme Court of Canada have seen a number of changes to the copyright landscape in Canada, including several changes that  will be important for those in the field of marketing and advertising. The changes include: (1) changes dealing with the ownership of copyright in photographs; (2) the expansion of the “fair dealing” exception; and (3) the new “mash-up” exception. Given that the copyright landscape will continue to evolve as the amendments to the Copyright Act are interpreted by the courts, you will need to keep these changes in mind and seek assistance when the need arises. Remember, unless you are the copyright owner, you will likely need to obtain authorization or a license to use a copyright protected work in your advertising/marketing campaigns!

Advertising to Children and French Language Issues

Speaker: Alexandra Nicol

Québec is currently the only Canadian province to have legislation prohibiting advertising directed to children under 13 years of age. Previously not much guidance was provided on the issue by the Québec Consumer Protection Office, but it has now published a Guide on advertising directed to children, which provides merchants, advertisers and lawyers with helpful guidelines and examples. To determine whether an advertisement is directed at children, one must generally consider: (1) the advertisement’s design; (2) the general context of the advertisement’s presentation; and (3) the general impression given by the advertisement. The Guide sets out all of the many specific criteria that must be considered in such determination. According to the Guide, even if an advertisement is placed in an adult- only publication (e.g., a financial newspaper), it does not necessarily mean that the advertisement will not attract the attention of children. Hence, it is important that those responsible for the conception and issuance of advertisements in Québec keep the Guide in mind.

Businesses also need to remember that, in Québec, the Charter of the French Language (“Charter”) imposes a number of requirements on them. For example, public signs and posters must generally be in French. Where commercial signs are in French and another language, the French must be markedly predominant. The Office québécois de la langue française (“Office”) has taken the position that the use of an English-only trademark as a business name on a commercial sign is acceptable provided that the trademark is registered in Canada  and is accompanied by a French generic term that describes the activities, products and/or services offered by the business. In the Fall of 2012, the Office began enforcing its policy by sending notices to businesses requiring them to modify their signs and threatening the imposition of fines and the suspension of previously issued francization certificates. A number of major Canadian retailers have objected to the Office’s policy claiming that it would force them to dilute their trademarks and the matter is currently before the courts in Québec.

In December 2012, the Government of Québec introduced Bill 14, which proposes to amend various provisions of the Charter. The proposed amendments aim to strengthen the powers of the Minister responsible for the application of the Charter, as well as the Office, and to amend certain provisions of the Charter applicable to municipalities, educational institutions and businesses.

Questions?

Please feel free to contact any of our speakers or members of the Advertising, Marketing and Sponsorship Group if you have questions.

Authors

Robert J. C. Deane 
RDeane@blg.com
604.640.4250

LuAnne Morrow 
LMorrow@blg.com
403.232.9577

Victoria Prince 
VPrince@blg.com
416.367.6648

Alexandra Nicol 
ANicol@blg.com
514.954.3158

Other Author

Theresa M. Corneau

Expertise

Advertising, Marketing and Sponsorship Law
Business and Corporate Commercial
Canada’s Anti-Spam Legislation (CASL)