Below is an excerpt from John McKeown’s August 2015 Mailer.
This month I would like to continue to discuss Protecting Brand Advertising and more specifically Comparative Advertising.
Comparative Advertising
A comparative advertisement is an advertisement in which the advertiser’s business or features of the advertiser’s product or service are compared to the business of others or the product or service of others. Typically the point of the comparison is a competitor or its product or service. The comparison may be direct in that a specific reference is made or indirect when a general reference is made such as the “leading brand” or “brand x”.
Accurate comparative advertising can be beneficial to consumers since they are provided with information which may allow them to make more informed and advantageous purchases. The Competition Bureau encourages appropriate product comparisons. On the other hand, inappropriate comparative advertising by an overzealous competitor demands an immediate response by the affected brand owner. There are a number of potential causes of action available to the brand owner.
The Competition Act
A brand owner concerned with a competitor’s conduct may bring the claims to the attention of the Commissioner and hope that the Commissioner will bring the matter forward for a review. Only the Commissioner may apply to the Tribunal, the Federal Court or a superior court of a province seeking a remedy relating to a reviewable matter. Interim relief is possible in this context.
If a brand owner seeks to bring an action under section 36 of the Competition Act the brand owner must show that it has suffered a loss or damage a result of a competitor’s violation of the provisions of section 52 of the Act. Unfortunately, from the brand owner’s point of view, this requires it to show that the competitor knowingly or recklessly made a representation to the public that is false or misleading in a material respect. A two year limitation period applies. Time commences to run from the time the impugned conduct was engaged in or the day on which any criminal proceedings relating to such conduct were finally disposed of, whichever is the later.
Protecting Fluid Trademarks: Best Practices Uncovered! 2015 Live Webinar
This webinar has taken place but if you were unable to attend and are interested in this subject, I have a brief paper. Please advise if you would like to receive a copy.
Click here to read the entire mailer.