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Blissdom Canada
2014
Presented by:
Jacqueline Dinsmore
Cognition LLP/Luvali
Convertibles

The “Fine Print”
The information provided in this presentation represents a
general overview and understanding of some general legal
issues. It is not intended to be used as legal advice. Any
application of the contents of this seminar in the context of
a specific business should entail further legal consultation
and consideration.

Advertising/Marketing Considerations

Publisher’s Liability
? Liability for misleading advertising or deceptive
marketing practices is attributed to the person who
has caused the representation to be made
? This can include disseminators of the information
such as print, television, radio and internet
? Electronic commerce is captured the same as
traditional media

Publisher’s Defence
? There is a defence to publisher’s liability as follows:
? Was the dissemination made in good faith and in the
ordinary course of business; AND
? The person advertising is in Canada and the name and
address of such person has been recorded
? That said, better safe than sorry! Review your ads, and be
careful of international submissions, as they become
YOUR submissions

General Advertising Principles
? Any time a claim is made in an ad that
might “reasonably be taken as true”
must be substantiated

Examples
? “We have the most likes on Facebook compared to
any other travel blog”
? “We were ranked #1 for best chicken in Elmira”
? “90% of children prefer our peanut butter to the next
leading brand”
? “Our skin care line is completely vegan”
? “99% of Pinewood students are accepted into
University”

Puffery
? An exception to the requirement to substantiate is
when the claim is so outlandish that a consumer
would not reasonably rely upon the claim or believe
it to be true
? The test- “Would a reasonable person rely upon the
representation?’
? Example: “We are the best website in the entire
universe.”
? Example: “Our seminars work wonders.”

Advertiser’s Opinion
? A claim that consists solely of an advertisers opinion
also does not require substantiation
? If a company says its products are “good”, the
consumer knows that he or she is relying only on the
company’s opinion of its products
? However, don’t disguise a fact as an opinion.
Example: “We think our vacuum cleaner is twice as
powerful as the competition’s.”

Tactics to Deal with Unsubstantiated Claims
? The Weasel Claim- “Our detergent leaves dishes
virtually spotless”
? The Unfinished Claim- “ABC gives you more”
? The We’re Unique Claim- “If it doesn’t say Downy, it
can’t be Downy”
? The Water is Wet Claim- “Our mascara greatly
increases the diameter of every lash”
? The So What Claim- “Our soup has not one, but two
beef stocks”

Comparative Advertising
? 4 out of 5 customers prefer Pepsi to Coca Cola
Be Careful!
- Get legal input before making comparisons
- There may be special trademark rules if you use a
competitors name
- Don’t rely on stale data
- Don’t underestimate the potential damage of a
comparative claim gone bad!

Basic Principles
? Copyright prevents others from copying, displaying or performing the work
? The work must be original and copyright exists upon the creation of a work
? Absent a contractual arrangement, the author owns the copyright. Copyright in Canada
lasts for the lifetime of the creator, plus 50 years from the end of the calendar year that the
creator died
? Registration is not necessary, but can be helpful and puts people on notice
? Copyright doesn't protect the idea, but the expression of the idea.
? Fair dealing is an exception to copyright for the purposes of research, private study,
criticism, review or news reporting, education, and satire or parody. Courts consider six
factors to determine what is “fair”: (i) commercial/research?; (ii)how much was copied?; (iii)
single use or ongoing? How widely distributed?; (iv)how essential was the use of the work?
; (v) nature of the work- public interest?; (vi) effect of the dealing on the work- did it impact
market value or the sale of the original work?

Public Domain?
? A work that is in the public domain is not subject to
copyright
? These are works where copyright is expired, works
that are ineligible for copyright or where copyright
has been waived by the owner
? MOST work on the internet is NOT in the public
domain, even if publically viewable
? When in doubt, get permission!

Contest Beware!
? Promotional contests on your site must be carefully
designed to avoid penalties under:
? the Criminal Code;
? the Competition Act;
? PIPEDA (privacy legislation);
? and special Quebec legislation on gaming.

General Contest Principles
? Ensure it is not illegal, immoral or dangerous
? If not a skill based contest, ensure there is no
purchase required to enter
? Consider name of the contest (IP rights?)
? Have agreements with third party sponsors
? Ensure compliance with privacy laws
? Does the contest/event involve some risks- release?
? Quebec or outside of Canada- very special rules

Contest Disclosure Checklist
? Disclose #, description and approx. value of prizes (no alcohol,
tobacco, gasoline, dairy- all regulated!)
? Set out regional allocation of prizes
? Disclose odds of winning (unless skill based contest)
? Disclose requirement to answer skill-testing question (unless skill
based contest). A 3 or 4 part math question, with 2 or 3 digit
numbers is deemed sufficient
? Specify opening and closing dates and times (Time Zones too!)
? Set out NO purchase required (if not skill based)
? Need full contest rules- more expansive on the above
? Be careful of contests where children are the participants- special
rules and releases

Need Help? Please give us a shout!
? Jacqueline Dinsmore
? 416-348-0313 ext. 107
? 416-882-1977 (cell)
? jdinsmore@cognitionllp.com; jackie@luvali.ca
? www.cognitionllp.com-
the “Entrepreneur Friendly” Law Firm- a revolutionary
new model in the legal industry

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