Understanding Unfair Competition Laws in Canada: Remedies and Private Actions, Slides of Competition Law and Policy

Download Understanding Unfair Competition Laws in Canada: Remedies and Private Actions and more Slides Competition Law and Policy in PDF only on Docsity! Legal Systems on Unfair Competition in CANADA Overview of • Public Remedies – Criminal – Civil • Private Remedies – Suits – Trade Mark Enforcement Actions Docsity.com Public Remedies The Competition Act. R.S. 1985, c. 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 Docsity.com WHAT MATTERS ARE CIVIL? • PART VII.1 DECEPTIVE MARKETING PRACTICES; Sections 74.01 to 74.06 of the Competition Act. Docsity.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 Docsity.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 Docsity.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”. Docsity.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. Docsity.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. Docsity.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. Docsity.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. Docsity.com Internet Communication • CAUTION: fax, Internet and pre-recorded messages will still be subject to the general provisions concerning misleading representations. Docsity.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. Docsity.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. Docsity.com . OECD • Guidelines for Consumer Protection in the Context of Electronic Commerce developed by the OECD • CANADA is a member Docsity.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. Docsity.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 Docsity.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. Docsity.com • The manufacturer has control over the content of the Web site. The manufacturer would be the focus of any investigation by the Bureau. Docsity.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. Docsity.com Consumers ISP • The consumer's Internet service provider has no control over the content on the manufacturer's Web site Docsity.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. Docsity.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 Docsity.com HOW TO AVOID LIABILITY FOR MISLEADING REPRESENTATIONS AND DECEPTIVE MARKETING PRACTICES • Don’t 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 Docsity.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. Docsity.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 Docsity.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 won’t shop online unless they enjoy local protections, or • b)The Law of the Seller -- businesses won’t sell unless they enjoy legal certainty and limited liability Docsity.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. Docsity.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 owner’s 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. Docsity.com The enforcement of judgments * Criminal ° Civil ¢ Trademark Docsity.com