This month I would like to continue to discuss Protecting Brand
Advertising and more specifically 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
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
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.
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