Online Advertising through Blogging of Retail and Merchandising brands
Brands, Trademarks, and Advertising
-
Upload
this-account-is-closed -
Category
Law
-
view
558 -
download
0
Transcript of Brands, Trademarks, and Advertising
Brands, Trademarks, and Advertising
Karin Binder, Trademark AgentJohn G. Leckie, Partner
January 27, 2016
What is a Brand?
A Brand is comprised of:• Product / Service• Packaging “get up” • Brand name and/or logo• Promotion and advertising
Appeal to the customer• Physical, aesthetic, rational, emotional
A brand embodies everything of value a company offers
2
What is a Trademark?
A “trademark” is a word, design, symbol, sign or other device capable of:• distinguishing the wares or services of one company from those
of another (a source identifier)
Not generic words Not names for new products Different from trade names
• a Corporate Name Registration per se does not necessarily entitle the company to use its name as a trademark
3
Why conduct a Trademark Search?
Identify potential issues with a trademark• Oppositions;• Infringement;• obstacles requiring defence of your trademark (i.e. confusingly
similar marks); and• Dilution
Save time and money• Find out up front whether trademark will encounter issues• Minimize risk of investing in branding, websites, advertising
campaigns, etc. only to find out that the mark you invested in can’t be registered
Once cleared; apply to register the trademark
4
Why register your Trademark?
Minimize Uncertainties
Registered Trademarks are regulated by the Canadian Intellectual Property Office and valid across Canada; Common Law Trademarks are regulated by the Courts and geographically restricted to the area in which you can show (i.e. evidence) a goodwill/reputation.
• Registration grants exclusive rights• Registration is prima facie evidence of rights• May prohibit others from using (and registering) confusing
trademarks• Can sue for infringement• Investors want to ensure you own your IP rights
5
Proper Use Use, use, use – failure may result in loss of rights “Use” has special definition:
• …at the time of transfer of the goods…in the normal course of trade…the trademark is applied on the goods themselves or the packaging…
• …with services if the mark is using or displayed in the performance or advertising of those services…
Use as registered (or re-apply) Don’t allow others to use without a licence Label and advertise correctly (also on websites!)
• Do NOT use as a Noun Wrong: Phone me on my BLACKBERRY Correct: Phone me on my BLACKBERRY smartphone
6
Proper Use
• Do NOT use as a Verb Wrong: BBMing is free Correct: Texting on the BBM messaging application is free
• Do NOT use in plural Wrong: These game apps are available on BLACKBERRIES Correct: These game apps are available on BLACKBERRY smartphones
• Do NOT use in possessive• Wrong: BLACKBERRY’S battery life is superior• Correct: The battery life of BLACKBERRY smartphones is superior
Are you using your trademark properly? Here’s a TEST:1. Remove the Trademark from the sentence in which it is used;2. Ask yourself if a complete sentence remains
7
Proper Use
Consistency builds strong trademarks
8
Marking
Use proper marking• ® - Registered Trademark• MD – Marque Déposée, French registered trademark• TM – Unregistered Trademark• MC – Marque de Commerce, French unregistered trademark
Why?• Product branding and awareness• Provides notice of your registered trademark• Also important when licensing
9
Summary
Budget Search to Clear Register Use and Avoid Losing
10
1. Basics of Advertising Law
2. Recent Enforcement Activity
3. Contests and Promotions in Social Media
4. Other Social Media Issues and Risks
5. Endorsements and Bloggers/Influencers
11
Introduction
Basics of Advertising Law
12
Basics of Advertising Law
Competition Act
Prohibits making representations that are false and misleading in a material respect
Penalties:• Individual: $750,000 and
$1,000,000 for subsequent order• Corporation: $10,000,000 and
$15,000,000 for subsequent order
Not only the literal words, but the general impression of advertising must be truthful
13
Basics of Advertising LawClaim Substantiation The Competition Act requires advertisers to have adequate, proper
and current tests to substantiate claims regarding performance, efficacy and length of life of products
Substantiation will vary depending on the claim:
• Consumer preference claims: survey evidence• Performance claims: technical data to support
Price Claims The Act also prohibits misleading price claims:
• In order to claim a “sale”, must comply with time or volume test
• Time Test – the retailer or advertiser must offer the product at the regular price in good faith for a substantial period of time
• Volume Test – at least 50% of the volume of stock must have actually been sold at the regular price
14
Basics of Advertising Law
When advertising goes wrong …
Money spent on fines, correction notices and lawyers
Class action lawsuits Competitive disputes are costly
and could cause counter-attack Company can be put on Bureau
Consent Order watchdog list Reputation diminishes
15
Recent Enforcement Activity
16
Recent Enforcement Activity
1717
"Consumers are entitled to clear and precise information when making their purchasing decisions and need to be confident that the information they receive regarding additional fees is truthful and accurate.“ – John Pecman, Commissioner of Competition
Bureau alleges that the car rental companies have engaged in misleading advertising by:• charging more than advertised rental charges (by failing to disclose
certain non-optional fees consumer are required to pay)
• mischaracterizing these non-optional fees, when disclosed, as taxes, surcharges or fees that the rental companies are required to collect from consumers, as opposed to mere costs recovery by the companies)
Recent Enforcement Activity
Competition Bureau vs. Avis/Budget
Competition Bureau has filed a Notice of Application seeking $10 Million “administrative monetary penalty” against each of Avis, Budget and their parent companies
Application also seeks a 10-year prohibition order, corrective advertising and consumer restitution order
18
Recent Enforcement Activity
1919
"We take misleading advertising very seriously" (…) "Consumers deserve accurate information when making purchasing decisions and need to have confidence they are not being misled by false advertising campaigns.” – Melanie Aitken, Former Commissioner of Competition.
Rogers, Bell and Telus were all sued by the Bureau in 2012 in relation to failure to disclose certain extra costs for certain texts and apps referred to as “premium rate digital content”. Telus has since agreed to give rebates of up to $7.34 million to customers who incurred premium text messaging charges.
Recent Enforcement Activity
Bell Canada agreed to a $10 million penalty relating to undisclosed mandatory fees in wireless, home phone and internet, such as touch-tone fees or modem rental fees. Fees were buried in fine print in a manner which the Bureau considered “hidden”.
Bell also agreed to pay 1.25 million in relation to the posting by employees of fake reviews of apps without disclosing that they were employees.
Rogers was ordered to pay a penalty of $500,000 in relation to false and misleading claims that its CHATR brand wireless service had fewer dropped calls than other carriers.
20
Contests and Promotionson Social Media Platforms
21
Contests and Promotions
Online and Social Media Contests Be aware of platform terms and guidelines Be very clear who is eligible Limit to one entry per person Institute a comprehensive “glitch” disclaimer Obtain rights to any material you are asking participants
to submit Limit to adults or get parental consent Beware voting fraud (where public voting involved)
22
Contests and Promotions
Minimizing Exposure (Consumer Generated Content):
Ensure rules/terms CLEARLY explain types of materials that are NOT permissible
DO NOT allow material to be directly posted online without first being passed through a content moderator
ALWAYS reserve the right to remove and/or disqualify materials AT ANY TIME and FOR ANY REASON
Allow users of the site to contact you regarding any material on your site that they consider inappropriate
23
Other Social Media Issues and Risks
24
This is Important …
25
If you are looking for RISK FREE…. then social media is NOT your playground
This is Important Too!
Always Remember: Advertising on social media sites is still subject to the same basic rules, regulations and policies that apply to other more traditional forms of media. • contest law; • false and misleading advertising; • privacy law; and• IP infringements.
BUT … you also now need to consider each social media sites’:• terms of use;• licences; • advertising guidelines; and• contest and promotions guidelines.
26
Social Media Policies
Posting Policy:
The rules that community members must follow when posting content. For example:
• users must have the rights to all materials they post;• opinions appearing on the site are not necessarily those of
company; • posters agree to keep their posted content civil, and not to post
offensive materials; and • An employee posting policy is also recommended.
27
Endorsements and Bloggers/Influencers
28
Bloggers, Brand Ambassadors and Influencers
Disclose “Material Connection” Ensure posting guidelines and policies are followed Have them sign an “Influencer Agreement” covering:
• responsibilities;• arrangements for delivery of samples of products for Influencers
and their followers to try or be awarded as prizing;• the frequency and number of posts the Influencer is expected to
deliver;• a Code of Conduct to be followed in terms of both posts and
conduct of the Influencer/ambassador at public-facing events;• the consideration to be paid to the Influencer and method of
disclosure of that payment; and• any exclusivity arrangements.
29
Bloggers, Brand Ambassadors and Influencers
Be sure to specify:• that testimonial statements must reflect real experience of
product or services;• acceptable and unacceptable statements about products or
services;• how relationship between advertiser and ambassador will
be disclosed;• how product or services will be tested by ambassador;• media and timing of statements about products and
services; and• Employees must also disclose their connection.
30
Thank You
montréal · ottawa · toronto · hamilton · waterloo region · calgary · vancouver · beijing · moscow · london
John G. LeckieTel: 604.443.7603Email: [email protected]
Karin BinderTel: 604 891 2729Email: [email protected]
Thank You
montréal · ottawa · toronto · hamilton · waterloo region · calgary · vancouver · beijing · moscow · london
February 24 Regulatory Affairs in the Pharmaceutical Market
March 30Intellectual Property in China
Upcoming ‘Hot Topics’ Seminars: