Presentation on theme: "Www.saxlaw.com Legal Systems on Unfair Competition in CANADA Overview of Public Remedies –Criminal –Civil Private Remedies –Suits –Trade Mark Enforcement."— Presentation transcript:
www.saxlaw.com Legal Systems on Unfair Competition in CANADA Overview of Public Remedies –Criminal –Civil Private Remedies –Suits –Trade Mark Enforcement Actions
www.saxlaw.com Public Remedies The Competition Act. R.S. 1985, c. C-34, http://laws.justice.gc.ca/en/C-34/ http://laws.justice.gc.ca/en/C-34/ CANADIAN Federal law governing business conduct which is applicable to all businesses. Misleading Advertising Guidelines (written pre 1999 amendments to the Act ) Internet advertising guidelines 2003
www.saxlaw.com The Competition Tribunal may examine two broad categories of the Act: 1.Criminal Offences such as: materially false or misleading representations made knowingly or recklessly, multi-level marketing, pyramid selling, double ticketing, deceptive telemarketing are addressed only through the criminal courts.
www.saxlaw.com Civil Matters 2.non-criminal (or so-called "civil") matters. In 1999, changes to the Competition Act created a civil process which is intended to be faster and more effective in putting a stop to misleading advertising and other deceptive marketing practices. Its not a softening in the Bureau's enforcement policy. The Bureau will enforce the criminal provision in the the most serious cases of deliberate misrepresentation.
www.saxlaw.com WHAT MATTERS ARE CIVIL? PART VII.1 DECEPTIVE MARKETING PRACTICES; Sections 74.01 to 74.06 of the Competition Act.
www.saxlaw.com Reviewable Conduct occurs when someone: promoting the supply or use of a product, makes a representation to the public that is false or misleading in a material respect makes a representation to the public in the about the performance, efficacy or life of a product not based on proper tests during the period to which the advertisement relates, sells the product at a price that is higher than the price advertised
www.saxlaw.com Reviewable Conduct Runs a contest, or otherwise disposes of any product or other benefit by any mode of mixed chance and skill whatever, where you do not follow Rx rules designed to give disclosure and fair chance
www.saxlaw.com Reviewable Conduct One uses fictitious "regular prices" as deceptive sales ploys. advertises at a bargain price a product that the person does not supply in reasonable quantities having regard to the nature of the advertisement.
www.saxlaw.com Misleading Representation and Deceptive Marketing Both the criminal and civil provisions prohibit misleading representations and deceptive marketing practices in promoting the supply or use of a product or any business interest.
www.saxlaw.com False or Misleading Material Representations A representation will be false or misleading in a material respect if,: in the context in which it is made, it readily conveys an impression to the ordinary citizen which is, in fact, false or misleading and that ordinary citizen would likely be influenced by that impression in deciding whether or not he would purchase the product being offered.
www.saxlaw.com Substance not Means of the Representation The Act address the substance of a false or misleading representation rather than the means by which it is made.
www.saxlaw.com Which Track to Proceed? In those situations where the Commissioner has a choice of proceeding on either the civil or criminal track, most often the civil track will be pursued.
www.saxlaw.com TAKING THE CRIMINAL TRACK In order to proceed on a criminal track both of the following criteria must be satisfied: (a) clear and compelling evidence suggesting that the accused knowingly or recklessly made a false or misleading representation to the public, and (b) that criminal prosecution would be in the public interest.
www.saxlaw.com Choosing Criminal or Civil simple task in cases where the Act creates specific criminal offences involving, and deceptive telemarketing where no precise civil equivalent is available.
www.saxlaw.com Deceptive Telemarketing New Section 52.1 is part of the misleading representations and deceptive marketing practices provisions of the Act. These provisions aim to require strict disclosure of marketplace information and discourage deceptive marketing practices.
www.saxlaw.com "Interactive telephone communications live voice communications between two or more persons The Bureau will not consider "interactive telephone communications" to have occurred with regard to: fax communications; Internet communications; or a customer's interaction with automated prerecorded messages.
www.saxlaw.com Internet Communication CAUTION: fax, Internet and pre- recorded messages will still be subject to the general provisions concerning misleading representations.
www.saxlaw.com What are the Criminal Stream Penalties? 52(5) of the Competition Act On summary conviction under the general criminal provision, a person is liable to a fine of up to $200,000, imprisonment for up to one year or both. If convicted on indictment, the person is liable to a fine at the discretion of the court, imprisonment for up to five years or both.
www.saxlaw.com CIVIL SANCTIONS The Bureau attempts to resolve matters through information contacts, negotiated undertakings and consent orders. the Commissioner may apply for an order requiring the person to cease the activity, publish a corrective notice and/or pay an administrative monetary penalty. individuals are liable to penalties of up to $50,000 and corporations are liable to penalties of up to $100,000.
www.saxlaw.com OTHER FEDERAL LAWS False or misleading representations pertaining to prepackaged non-food products, consumer textile fibre products and precious metals articles are also captured under the Consumer Packaging and Labeling Act (CPLA), the Textile Labeling Act (TLA), and the Precious Metals Marking Act (PMNA) respectively. these statutes would also extend to representations that are made via the Internet.
www.saxlaw.com PROVINCIAL LAWS Consumer protection and Business practices laws The Canadian Code of Practice for Consumer Protection in Electronic Commerce endorsed by federal, provincial and territorial ministers responsible for consumers affairs on January 16th, 2004. establishes benchmarks for good business practice for merchants conducting commercial activities with consumers online.
www.saxlaw.com OECD Guidelines for Consumer Protection in the Context of Electronic Commerce developed by the OECD CANADA is a member
www.saxlaw.com Conflict of law rules As a general rule, national laws on competition are limited to the territory of the country making them, although some countries feel free to give extraterritorial scope to measures taken under such laws. claim jurisdiction over such matters when substantial impacts are felt in the Canadian marketplace, international cooperation
www.saxlaw.com Bilateral Agreements for a list of Bilateral Agreements that Canada has entered into relating to the reciprocal enforcement of their respective competition laws including deceptive marketing. see http://strategis.ic.gc.ca/epic/internet/incb -bc.nsf/en/h_ct02124e.html http://strategis.ic.gc.ca/epic/internet/incb -bc.nsf/en/h_ct02124e.html
www.saxlaw.com E-consumer.gov Canada participated in the launch of the "econsumer.gov" web site initiative by International Marketing Supervision Network a network of 29 governmental organizations involved in the enforcement of fair trade practice laws and other consumer protection activities The site allows consumers from all over the world to file complaints against foreign companies concerning transactions on the Internet.
www.saxlaw.com Liability of the Vendor and/or the ISP In its enforcement efforts, the Bureau focuses on the party who "causes" the representation to be made. ascertain which player possesses decision-making authority or control over content and to assess the nature and degree of their authority or control made on a case-by-case
www.saxlaw.com What if the party making the misrepresentation is outside Canada? Where a person making a representation is outside Canada, the representation is deemed to be made to the public by the person who imports into Canada the article, thing or display.
www.saxlaw.com Who is Deemed to make Rep? responsibility for advertising content should also be examined in the context of the deeming provisions found in subsections 52(2) i.e., examine packaging, attachments, point of sale context deemed made by who caused it to be made electronic commerce are governed by these provisions to the same extent as traditional media
www.saxlaw.com Manufacturer&/or Vendor vs. ISP businesses which are responsible for content or have a degree of control over that content, (MANUF/VENDOR) not businesses operating as a conduit, that is, a disseminator or distributor of the content. (ISP)
www.saxlaw.com The manufacturer has control over the content of the Web site. The manufacturer would be the focus of any investigation by the Bureau.
www.saxlaw.com ACTIVE INVOLVEMENT OR CONTROL A retailer, or other businesses in the supply chain of the product, could also be the subject of such an investigation if they are actively involved or have a degree of control over the making of representations about the product.
www.saxlaw.com Consumers ISP The consumer's Internet service provider has no control over the content on the manufacturer's Web site
www.saxlaw.com WEB HOST and ISP The manufacturer's Web host would not typically screen content before it is posted to the site and thus would not likely be the focus of the Bureau's investigation. Enforcement might occur, for example, where the third party is aware that an advertiser has been convicted of misleading advertising with respect to a particular representation, but continues to disseminate the representation on behalf of the advertiser.
www.saxlaw.com Publishers Defense: A defense analogous to a newspaper or magazine publisher. Is found for a person who merely "prints or publishes or otherwise disseminates a representation. The required conditions which must be met under this exception are:
www.saxlaw.com Required Defense Conditions The disseminating person accepted the representation for dissemination in good faith and in the ordinary course of its business; and The person on whose behalf the representation is being made is in Canada, and the disseminating party recorded its name and address.
www.saxlaw.com RECOL - Reporting Economic Crime On-Line www.RECOL.ca RECOL will recommend the appropriate law enforcement or regulatory agency and/or private commercial organization for potential investigation. This service is administered by the National White Collar Crime Centre of Canada and is supported by the Royal Canadian Mounted Police and other participating agencies
www.saxlaw.com HOW TO AVOID LIABILITY FOR MISLEADING REPRESENTATIONS AND DECEPTIVE MARKETING PRACTICES Dont assume that consumers read an entire Web site. Representations should be presented in such a fashion as to make it noticeable and likely to be read a court will take into account the general impression conveyed by the representation, in addition to its literal meaning
www.saxlaw.com HOW TO AVOID LIABILITY FOR MISLEADING REPRESENTATIONS AND DECEPTIVE MARKETING PRACTICES A disclaimer can only qualify a representation; it cannot cure or retract a false or misleading representation. LOCATION: the disclaimer should appear on the same screen and close to the representation to which it relates
www.saxlaw.com 1. Disclaimers Size and colour Monitors, operating systems, wireless devices etc alert consumers to the existence of the disclaimer Visual clues etc. Use of attention-grabbing tools "see below for restrictions on eligibility" may be appropriate, whereas "see below for details" may not.
www.saxlaw.com Representations about the Business The Bureau recommends that the businesses ensure that: (a) The Web site in question does not create a false or misleading impression as to the physical location or identity of the business. (b) The use of text, graphics, logos, marks, seals or trustmarks, accreditations or other representations do not create false impressions of affiliation, sponsorship, endorsement or popularity.
www.saxlaw.com Representations about the Business (c) The representations do not mislead consumers as to the type of organization making the representations or as to the purpose of the representations. (d) The representations do not mislead consumers as to the relationship between the party making the representation and the supplier of the product or service
www.saxlaw.com Venues For Legal Remedies Against The Vendor And/Or The Provider Whose law should apply in B2C e-commerce transactions? a)The Law of the Consumer -- consumers wont shop online unless they enjoy local protections, or b)The Law of the Seller -- businesses wont sell unless they enjoy legal certainty and limited liability
www.saxlaw.com Zippo Mfg. Co. v. Zippo Dot Com, Inc., test: DEFENDANT CLEARLY DOES BUSINESS OVER THE INTERNET personal jurisdiction is proper. DEFENDANT [WHO] HAS SIMPLY POSTED INFORMATION ON AN INTERNET WEB SITE WHICH IS ACCESSIBLE TO [FORUM RESIDENT] USERS no jurisdiction.... The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer.
www.saxlaw.com It was followed in Canada in Braintech Inc. v. Kostiuk (1999).
www.saxlaw.com Targeting Test Courts then moved to the targeting test which examines whether the online conduct in question potentially defamatory postings or e-commerce transactions are targeted toward the locale being asked to assert jurisdiction.
www.saxlaw.com Trade Mark Enforcement Actions function of the Trade-marks Office is to prevent anyone else from registering a mark that is the same as or confusingly similar to existing mark. It does not, however, keep an eye out for cases of infringement. It is owners responsibility to monitor the marketplace and, someone using your registered trade-mark or a mark or a trade name that is confusing with your mark, to take legal action. Someone who infringes on trade-mark rights may be accountable to owner by way of an injunction, i.e., an order to cease the infringing activity and/or damages.
www.saxlaw.com The enforcement of judgments Criminal Civil Trademark