Topic: Advertising

(Un)conscious Marketing: Is green really the new black?

As we settle into a new calendar year, we reflect on the Australian Competition and Consumer Commission’s (ACCC) 2022/2023 compliance and enforcement priorities announcing, amongst other priorities, their commitment to resolving consumer and fair trading issues regarding environmental claims and sustainability. In a recent speech at the Sydney Morning Herald Sustainability Summit, ACCC Deputy Chair … Continue reading

Raising our (Ad) Standards: What environmental claims have Australian regulatory bodies deemed acceptable (or not)?

By Georgina Hey (AU) and Isobel Taylor (AU) on February 27, 2023 Posted in Advertising, Ethics, Intellectual Property, Litigation

The recent announcement that the self-regulated Australian Association of National Advertisers’ (AANA) will be undertaking a review of the AANA Environmental Claims Code (Environmental Code) follows the growing community concern about the environment, increased sustainability claims and climate change. The review will focus on making certain that the Environmental Code is meeting its objectives in … Continue reading

Québec French Language Law Reform: Upcoming Changes for Businesses

By Catherine Daigle (CA) and Fortunat Nadima Nadima on May 26, 2022 Posted in Advertising, Brands, Trademark

Following a well-publicized debate, on May 24, 2022, the National Assembly of Québec finally passed the Act respecting French, the official and common language of Québec (Bill 96), a major reform of the 1977 Charter of the French Language (the Charter, also known as Bill 101). The Charter sets out language requirements for product packaging, … Continue reading

Amazon’s 2020 Brand Protection Report – What Brand Owners Need to Know

By Sarah Pennington on May 27, 2021 Posted in Advertising, Brands, Counterfeiting, General, Intellectual Property, Trademark

On May 10, 2021, Amazon released its 2020 Brand Protection Report (the Report), the first of its kind published by the e-commerce giant. The Report offers insight into Amazon’s brand protection approach and efforts over the past year, including proactive controls, brand tools, and consequences for “bad actors”. With a growing number of fraudsters cropping … Continue reading

Testing and trade secrets: marketing may eliminate rights

By Sean Patrick McGinley (US) on February 26, 2021 Posted in Advertising, Intellectual Property

Marketing testing procedures and results often provides compelling data to influence customer decisions. But, doing so may impede potential trade secret misappropriation claims. As further described below, a federal court recently granted summary judgment against a trade secret misappropriation claim because the company advertised information about testing equipment, operations, and outcomes. (S&G Labs Hawaii v. … Continue reading

Executive Order to breathe new life into Made-in-America rules

By Andre Hanson (US) and Saul Perloff (US) on January 26, 2021 Posted in Advertising, General

Federal acquisition law and regulations often require government agencies to give purchasing preference to domestic suppliers. These preferences—some of which have remained unchanged since the Eisenhower Administration—have not always been implemented consistently or effectively. That uncertain landscape may be about to change. On Monday, January 25, 2021, the Biden Administration issued an Executive Order setting … Continue reading

Passing off as Parsons: Injunction and Damages Granted to Halt Phishing Website

By Caroline Henrie (CA) on January 25, 2021 Posted in Advertising, Brands, Domain names, Enforcement, Trademark

Last week, in Parsons Inc. v Khan, 2021 FC 57, the Federal Court found the owner of a phishing website liable for passing itself off as the Applicants’, Parsons Corporation and Parsons Inc. (“Parsons”). Parsons, a multinational engineering and construction firm with a Canadian subsidiary, has applied-for and used, but not yet registered, the PARSONS … Continue reading

Domain Names and Online Trademarks: When is a Consumer Confused?

By Bianca Pietracupa (CA) on October 5, 2020 Posted in Advertising, Domain names, General

As more businesses move online, the value and importance of domain names and online trademark enforcement grows. The Superior Court of Quebec has reaffirmed that a confusing domain can land your business in legal trouble. The dispute arose between the unregistered trademark of Cabanons Mirabel, and confusing domain names chosen by a competitor. Cabanons Mirabel … Continue reading

Are golf polos out of tune with the law?

By Jean-François Drolet on October 1, 2020 Posted in Advertising, Copyright, Counterfeiting

What do Bill Murray and Donald J. Trump have in common? At first glance, very little, one is a comedian and actor, the other is, of course, President! Yet, while everything drives them apart, both are golf enthusiasts, one owns a clothing golf company and the other owns many prestigious courses but, most importantly, both … Continue reading

SCOTUS Strikes Down Goverment Loan TCPA Exception

By Peter Stokes, Andy Guo (US) and Saul Perloff (US) on August 19, 2020 Posted in Advertising, TCPA

After spawning hundreds of class actions over the alleged use of auto-dialed phone calls and text messages, the Telephone Consumer Protection Act (TCPA) has finally made its way to the United States Supreme Court. Last month, the Supreme Court ruled in Barr v. American Association of Political Consultants (AAPC), 140 S. Ct. 2335 (2020) that … Continue reading

Grey Goods and False Labels: Federal Court Grants Interlocutory Injunction in a Trademark Case

By Sarah Pennington on August 11, 2020 Posted in Advertising, Counterfeiting, General, Trademark

In a recent trademark passing off case, TFI Foods Ltd. et al. v. Every Green International Inc., 2020 FC 808, the Canadian Federal Court granted an interlocutory injunction prohibiting the defendant from selling grey goods in Canada. Specifically, the defendant was enjoined from using labels falsely identifying it as the exclusive manufacturer of certain imported … Continue reading

Federal Common Law Governs Availability of Statutory Restitution in Diversity Suit

By Andre Hanson (US), Leaf Dilts McGregor (US) and Saul Perloff (US) on July 8, 2020 Posted in Advertising

The Ninth Circuit held that, irrespective of a state’s own standards for equitable relief, a federal court exercising diversity jurisdiction is bound by federal common law requirements for granting the equitable remedy of restitution, including the mandate that such relief is unavailable unless there is no adequate remedy at law. Sonner v. Premier Nutrition Corp., … Continue reading

(Mis)Interpretation of Standard Did Not Support False Advertising Liability

By Andre Hanson (US), Leaf Dilts McGregor (US) and Saul Perloff (US) on July 6, 2020 Posted in Advertising

The Eleventh Circuit just ruled that a standard-setting-body’s interpretation of its own standards is an opinion that cannot support Lanham Act false advertising liability. Warren Technology, Inc. v. UL LLC, __ F.3d __, No. 18-14976, 2020 WL 3406585 (11th Cir. Jun. 22, 2020). Plaintiff Warren Technology and defendant Tutco, LLC competed in the field of … Continue reading

Outlaw Labs Can’t Charge Ahead In Suit Against Rhino Sellers

By Andre Hanson (US), Leaf Dilts McGregor (US) and Saul Perloff (US) on July 1, 2020 Posted in Advertising

Another chapter in the Outlaw Laboratories litigation drama has ended with another defeat for Outlaw. In 2018 the FDA warned consumers that some “Rhino” products—supplements that compete with Outlaw’s own “male enhancement” supplements—were adulterated with the active ingredients found in prescription drugs like Viagra and Cialis. Outlaw launched a series of false advertising suits against … Continue reading

Canadian Court Openings Begin – Closure Updates May 1

By Madeleine Hodgson (CA) and Renaud Garon Gendron on May 1, 2020 Posted in Advertising, Copyright

Please see our updated version of this article, published July 10, 2020. As a further update to our post earlier this week, the Federal Court and British Columbia Supreme Court issued updated notices, and Quebec has extended its declaration of a state of health emergency until May 6, 2020. We will continue to provide updates … Continue reading

Meaty Brand Messaging During a Crisis

By Robert Rouder (US) and Andre Hanson (US) on April 10, 2020 Posted in Advertising

Brand promotion may be seen as encompassing (at least) three distinct but overlapping modes: (i) Advertising for the moment—the message is meant to drive immediate sales; (ii) Advertising for post-sale burnishment—the message does more than sell products today, it builds the image or reputation of the brand; and (iii) Advertising for posterity—a commercial communication that … Continue reading

A different type of virus

By Frances Drummond (AU) and Alyson Poole (AU) on April 5, 2020 Posted in Advertising

When times become tough, stressful and trying, many people react with humour. As the world finds itself in the midst of a global medical virus, a different type of virus – a virtual virus – has taken off and continues to grow. COVID-19. A virus interchangeably referred to as Coronavirus. A virus which is familiar … Continue reading

Healthy treat or misleading deceit? ACCC intends to crackdown on misleading claims in food marketing

By Georgina Hey (AU), Alyson Poole (AU) and Matt Allen (AU) on March 30, 2020 Posted in Advertising

In February 2020, the Australian Competition and Consumer Commission (ACCC) released its compliance and enforcement policy and priorities for 2020. Amongst the ACCC’s key enforcement priorities will be a focus on misleading conduct in relation to the sale and promotion of food products, including health and nutritional claims, credence claims and country of origin claims. … Continue reading

Mitigating Advertising Risks During the COVID-19 Crisis

By Saul Perloff (US), Andre Hanson (US), Robert Rouder (US) and Leaf Dilts McGregor (US) on March 27, 2020 Posted in Advertising

During this time of crisis, pharmaceutical and consumer product companies along with retailers are doing their best to provide the public with products to prevent and treat COVID-19. At the same time, the FTC and FDA have announced that they will be particularly vigilant in policing unscrupulous or overzealous marketers making unsubstantiated, misleading, or false … Continue reading

Online Brand Management: Avoiding Toxic Social Influencers

By Bianca Pietracupa (CA), Elizabeth Williams (CA) and Amy Grenon (CA) on March 23, 2020 Posted in Advertising, General, Trademark

Online brand protection must be taken into consideration, particularly when faced with changing consumer behavior, market uncertainty and rampant misinformation. Social influencers with large audiences that value their opinions on consumer products and health regimes are a valuable tool for companies and governments looking to reach large online communities quickly. However, some influencers have been … Continue reading

Are you kicking goals when it comes to social media activity, or heading to the sin bin?

By Rebecca Brenikov (AU) and Alyson Poole (AU) on May 12, 2019 Posted in Advertising, Copyright, General

They say that a picture tells a thousand words. But as became apparent in Australia recently, posting a picture on social media can result in a thousand (derogatory and sexist) words. A photograph posted on Twitter by Seven AFL (taken by photographer Michael Wilson), resulted in Australian female AFLW star, Taylor Harris, hitting all the … Continue reading

Ad Standards Canada updates its Dispute Procedure

By Patrick Levesque (CA) on February 26, 2019 Posted in Advertising

Advertising Standards Canada (“Ad Standards”) is a not-for-profit self-regulatory body that provides competitors with a confidential forum for the resolution of advertising disputes as an alternative to a court action. The process for dispute resolution with Ad Standards is governed by the Advertising Dispute Procedure (the “Dispute Procedure”). The Dispute Procedure is intended to provide a … Continue reading

Are tougher days coming for approval of agribusiness certification trademarks in Australia?

By Georgina Hey (AU) and Amanda Caldwell (AU) on November 29, 2018 Posted in Advertising, Trademark

On 22 November 2018 the Australian Competition and Consumer Commission (ACCC) issued its initial assessment of the rules governing use of four certification trade marks in the name of OxoPak Pty Ltd, indicating its intention deny approval for the certification rules, and therefore the trade marks will be denied.… Continue reading