Below is an excerpt from John McKeown’s July 2015 Mailer.
The recent announcement by the Competition Bureau that their strategic plan emphasizes safe-guarding Canadians against anti-competitive and deceptive conduct through active enforcement as a main focus makes a consideration of misleading advertising timely. This month we discuss the types of remedies available to the Commissioner of Competition.
Remedies for Reviewable Matters
The Commissioner of Competition may apply to the Competition Tribunal, the Federal Court or a superior court of a province seeking a remedy relating to a reviewable matter. As discussed in the May letter “reviewable conduct” includes misleading advertising and the like. If the Tribunal or the court finds that a person has engaged in reviewable conduct contrary to the Act, they may make any combination of the following orders:
a) A cease and desist order requiring the person to stop the activity complained of and not to engage in substantially similar conduct for a period of 10 years unless the order specifies a shorter period.
b) A temporary order that the person not engage in that conduct or substantially similar reviewable conduct for such period as the court considers sufficient to meet the circumstances of the case if:
i) serious harm is likely to ensue unless the order is made; and
ii) the balance of convenience favours making the order.
c) Payment of an administrative monetary penalty, in any manner that the court specifies, in an amount not exceeding:
i) in the case of an individual, $750,000 and, for each subsequent order, $1,000,000, or
ii) in the case of a corporation, $10,000,000 and, for each subsequent order, $15,000,000.
d) Publication, in such manner and at such times as is specified, of a “corrective” notice directed to the class of persons likely to have been affected by the impugned conduct. The notice will include the name under which the person carries on business and the determination made as well as:
i) a description of the reviewable conduct;
ii) the time period and geographical area to which the conduct relates; and
iii) a description of the manner in which any representation or advertisement was disseminated, including, where applicable, the name of the publication or other medium employed.
e) Payment as restitution of an amount, not exceeding the total of the amounts paid to the person for the products in respect of which the conduct was engaged in, to be distributed among the persons to whom the products were sold-except wholesalers, retailers or other distributors, to the extent that they have resold or distributed the products- in any manner that the court considers appropriate.
f) If a court finds a strong prima facie case that a person is engaging in or has engaged in conduct that is reviewable as a false or misleading representation, and the court is satisfied that the person owns or has possession or control of articles within the jurisdiction of the court and is disposing of or is likely to dispose of them by any means, and that the disposal of the articles will substantially impair the enforceability of an order made for restitution as described above the court may issue an interim injunction forbidding the person or any other person from disposing of or otherwise dealing with the articles, other than in the manner and on the terms specified in the injunction.
The remedies are significant and are typically combined with significant adverse publicity associated with this type of proceeding. There is considerable merit in implementing a compliance program to ensure that no problems occur.
Protecting Fluid Trademarks: Best Practices Uncovered!
I have been asked to speak at a webinar sponsored by the Knowledge Group to deal with this topic. The webinar is scheduled to take place on Tuesday, July 14. If you are interested in attending, please click here.
Click here to read the entire mailer.