Topic: Advertising

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Managing your products when a patent expires – how good brand management can maintain product and brand awareness, and build market share

The Australian Government’s recently expressed interest in cracking down on misuses of market power may have left some patent holders with concerns about the proposed amendments to the Competition and Consumer Act 2010 (the Act). All the fuss relates to section 46 of the Act: the provision which prohibits a company with a substantial degree … Continue reading

Telstra hits a home run in defending its “Go to Rio” Olympiads

Last year, we reported on a decision of the Federal Court of Australia, in which the Australian Olympic Committee (AOC) unsuccessfully sought injunctive relief to prevent Telstra from running its “Go to Rio” advertising campaign in the lead-up to the 2016 Summer Olympic Games in Rio.[1] In an attempt to preserve the value of its … Continue reading

Rebranding 4.0: Why authenticity matters to socially-aware consumers, and how to convey it

Increasingly affordable renewables, coupled with consumers’ sensitivity to environmental, social and governance (ESG) issues, are driving a profound shift in energy markets worldwide. Nowhere is this more apparent than in brand equity, and the trust levels displayed by the public towards traditional energy businesses versus green, dynamic start-ups. Rebranding is a powerful tool to close … Continue reading

Australia – No extensions for Swiss style Pharma Patents

A Full Court of the Federal Court has confirmed that patents containing “Swiss-style” claims are outside the scope of the Australian patent term extension regime in its recent judgment of Commissioner of Patents v AbbVie Biotechnology Ltd [2017] FCAFC 129. What it means: Patents which claim methods or processes involving pharmaceutical substances cannot be extended … Continue reading

Court decision highlights difficulty in challenging innovation patents

Late last month, Justice Burley handed down his decision in Doric Products Pty Ltd v Asia Pacific Trading (Aust) Pty Ltd [2017] FCA 849. The decision provides a useful illustration of how Australian Courts will approach construction, infringement and validity issues in innovation patent proceedings, and emphasises the difficulties respondents face when challenging the validity … Continue reading

Australian Modern Slavery Act: Why big brands will have nowhere to hide

The Australian Government has just confirmed that new legislation will be introduced requiring large Australian businesses to report annually on their efforts to address modern slavery. The result will be a framework similar to the corporate-focussed legislation enacted in the UK in 2015 and similar initiatives that are under discussion in other jurisdictions including the … Continue reading

Rebranding in the energy market – The issues to consider

A number of energy giants have recently undergone corporate rebranding exercises. The motivations of these powerhouses often vary, from unifying a group after a series of mergers and acquisitions, to repairing reputational damage, to just aligning with a new corporate vision.  Tesla dropped “Motors” from its branding in 2016 to promote its clean energy solutions … Continue reading

Web Advertising – Complying with FTC’s “Clear & Conspicuous” Rule

Increasingly, companies are turning to the internet and social media platforms to advertise their products, often by using native advertising or by providing incentives such as payments or free products to social media “influencers” (Instagrammers, Pinners, Bloggers and Vloggers, to name a few) in exchange for an endorsement. As we have previously discussed, the FTC … Continue reading

11th Cir. holds “skim milk” label protected by 1st Amendment

In a case with potentially significant ramifications for regulatory oversight of the labeling and advertising of foods and pharmaceuticals, the Eleventh Circuit held the First Amendment precluded the Florida Department of Agriculture’s Bureau of Dairy Industry (the “Florida Bureau”) from prohibiting a dairy company’s use of the phrase “skim milk” to describe its “all-natural” milk … Continue reading

What’s in a name? How to protect yourself if your name is your personal brand

Cher, Prince, Oprah, Bono – all of these celebrities have one thing in common – the capacity to be recognised by nothing more than a single name. For businesses which are built on the success of a personal brand, a name can be a crucial component of being recognised by consumers. But the question remains: should … Continue reading

Productivity Commission’s Report on Australia’s IP system

The Inquiry Report into Intellectual Property Arrangements recently published by the Productivity Commission (Report) argues that Australia’s IP system is weighted too heavily in favour of rights holders and against the interests of the broader community. It has made various recommendations to correct this perceived imbalance. This article considers some of the recommended changes which, … Continue reading

Global health trends impacting the regulation of food and beverage labels

As global rates of obesity and related diseases continue to rise, consumers around the world are becoming more health conscious, and are expecting their food products to reflect their desire for healthier options. A recent Nielsen Global Health and Wellness Survey found that, of the 30 000 people across 60 countries surveyed, 49% consider themselves … Continue reading

Commissioner settles “Made in Canada” misleading advertising dispute

Canadian sportswear maker Moose International Inc. announced on December 6, 2016, that it had resolved its dispute with Canada’s Commissioner of Competition (Commissioner) over the accuracy of its claims that certain of its high-end parkas were made in Canada. The Commissioner had filed an application with the Canadian Competition Tribunal in April 2016 alleging the … Continue reading

Denial of CDA immunity defense not immediately appealable

On November 1, 2016, the U.S. Court of Appeals for the Tenth Circuit ruled that the Communications Decency Act (CDA) provides immunity from liability, not from suit, precluding interlocutory appellate jurisdiction under the collateral order doctrine. General Steel Domestic Sales, L.L.C. v. Chumley, et al., Case No. 15-1293, __ F.3d __, 2016 WL 6441028. The … Continue reading

Package as “Advertising”

On October 17, 2016, a US federal trial court in the District of Columbia ruled that a competitor may pursue a Lanham Act claim for false advertising due to a container of black pepper. Watkins Inc. v. McCormick & Co., Inc., Case No. 1:15-cv-2188 (ESH) (D.D.C. Oct. 17, 2016) (2016 WL 6078250). In ruling on … Continue reading

Better Business Bureau’s New “Native Advertising” Guidance

On October 25, 2016, the Better Business Bureau (BBB) announced its release of a new section to its Code of Advertising to address  The term “native advertising” describes ads where the “design style and functionality of commercial messages mimic related content.” The New Guidance The fundamental point of the new section 39 is that advertisers … Continue reading

Second Circuit may address apparent Apotex/Church & Dwight split

In our September 28, 2016 blog post, and subsequent Law360 Article, we reported that an internal Second-Circuit split had arisen regarding the deference owed to allegedly false and misleading pharmaceutical/medical device advertising where the FDA had considered and approved similar claims for labeling. The earlier decision involved in the split, Apotex, Inc. v. Acorda Therapeutics, Inc.  823 F.3d 51 (2d … Continue reading

Intra-Circuit split should give advertisers pause

While advertising off-label claims for medical devices and pharmaceuticals may be like sailing into stormy waters, companies might assume that advertising their products based on FDA-vetted labeling is, if not a safe harbor, at least a reasonably sheltered cove.  The recent Second Circuit decision in Church & Dwight Co. Inc., v. SPD Swiss Precision Diagnostics, … Continue reading

Don’t congratulate #TeamCanada at #Rio2016: Olympic social media rules in Canada

With the Rio Olympics well underway, Canadian brands need to be aware of the “do’s and don’ts” of advertising and social media content involving the Olympics and Olympic athletes. The International Olympic Committee (IOC) and the Canadian Olympic Committee (COC) have long been aggressive in enforcing illicit use of the term “Olympics”, the five rings … Continue reading
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