Blissdom Canada2014

Presented by: Jacqueline DinsmoreCognition LLP/Luvali Convertibles

The “Fine Print”

The information provided in this presentation represents a general overview and understanding of some general legal issues. It is not intended to be used as legal advice. Any application of the contents of this seminar in the context of a specific business should entail further legal consultation and consideration.

Advertising/Marketing Considerations

Publisher’s Liability

Liability for misleading advertising or deceptive marketing practices is attributed to the person who has caused the representation to be made

This can include disseminators of the information such as print, television, radio and internet

Electronic commerce is captured the same as traditional media

Publisher’s Defence

There is a defence to publisher’s liability as follows:

Was the dissemination made in good faith and in the ordinary course of business; AND

The person advertising is in Canada and the name and address of such person has been recorded

That said, better safe than sorry! Review your ads, and be careful of international submissions, as they become YOUR submissions

General Advertising Principles

Any time a claim is made in an ad that might “reasonably be taken as true” must be substantiated

Examples

“We have the most likes on Facebook compared to any other travel blog”

“We were ranked #1 for best chicken in Elmira”

“90% of children prefer our peanut butter to the next leading brand”

“Our skin care line is completely vegan” “99% of Pinewood students are accepted into

University”

Puffery

An exception to the requirement to substantiate is when the claim is so outlandish that a consumer would not reasonably rely upon the claim or believe it to be true

The test- “Would a reasonable person rely upon the representation?’

Example: “We are the best website in the entire universe.”

Example: “Our seminars work wonders.”

Advertiser’s Opinion

A claim that consists solely of an advertisers opinion also does not require substantiation

If a company says its products are “good”, the consumer knows that he or she is relying only on the company’s opinion of its products

However, don’t disguise a fact as an opinion. Example: “We think our vacuum cleaner is twice as powerful as the competition’s.”

Tactics to Deal with Unsubstantiated Claims

The Weasel Claim- “Our detergent leaves dishes virtually spotless”

The Unfinished Claim- “ABC gives you more”The We’re Unique Claim- “If it doesn’t say

Downy, it can’t be Downy”The Water is Wet Claim- “Our mascara

greatly increases the diameter of every lash”The So What Claim- “Our soup has not one,

but two beef stocks”

Comparative Advertising

4 out of 5 customers prefer Pepsi to Coca Cola

Be Careful!- Get legal input before making comparisons- There may be special trademark rules if you

use a competitors name- Don’t rely on stale data- Don’t underestimate the potential damage of a

comparative claim gone bad!

Quick and Dirty on Copyright

Basic Principles

Copyright prevents others from copying, displaying or performing the work The work must be original and copyright exists upon the creation of a work Absent a contractual arrangement, the author owns the copyright. Copyright in

Canada lasts for the lifetime of the creator, plus 50 years from the end of the calendar year that the creator died

Registration is not necessary, but can be helpful and puts people on notice Copyright doesn't protect the idea, but the expression of the idea. Fair dealing is an exception to copyright for the purposes of research, private

study, criticism, review or news reporting, education, and satire or parody. Courts consider six factors to determine what is “fair”: (i) commercial/research?; (ii)how much was copied?; (iii) single use or ongoing? How widely distributed?; (iv)how essential was the use of the work? ; (v) nature of the work- public interest?; (vi) effect of the dealing on the work- did it impact market value or the sale of the original work?

Public Domain?

A work that is in the public domain is not subject to copyright

These are works where copyright is expired, works that are ineligible for copyright or where copyright has been waived by the owner

MOST work on the internet is NOT in the public domain, even if publically viewable

When in doubt, get permission!

The ins and outs of Contests

Contest Beware!

Promotional contests on your site must be carefully designed to avoid penalties under:

the Criminal Code; the Competition Act; PIPEDA (privacy legislation); and special Quebec legislation on gaming.

General Contest Principles

Ensure it is not illegal, immoral or dangerousIf not a skill based contest, ensure there is no

purchase required to enterConsider name of the contest (IP rights?)Have agreements with third party sponsorsEnsure compliance with privacy lawsDoes the contest/event involve some risks-

release?Quebec or outside of Canada- very special

rules

Contest Disclosure Checklist

Disclose #, description and approx. value of prizes (no alcohol, tobacco, gasoline, dairy- all regulated!)

Set out regional allocation of prizes Disclose odds of winning (unless skill based contest) Disclose requirement to answer skill-testing question (unless

skill based contest). A 3 or 4 part math question, with 2 or 3 digit numbers is deemed sufficient

Specify opening and closing dates and times (Time Zones too!) Set out NO purchase required (if not skill based) Need full contest rules- more expansive on the above Be careful of contests where children are the participants-

special rules and releases

Need Help? Please give us a shout!

Jacqueline Dinsmore416-348-0313 ext. 107

416-882-1977 (cell)jdinsmore@cognitionllp.com; jackie@luvali.ca

www.cognitionllp.com- the “Entrepreneur Friendly” Law Firm- a

revolutionary new model in the legal industry