Internet continues to spawn interesting legal dilemmas

Susan Vogt practises marketing law at the Toronto offices of Gowling, Strathy & Henderson. The year 2000 is an interesting time to be practising law. More than ever before, clients are asking questions to which there are no answers. On...

Susan Vogt practises marketing law at the Toronto offices of Gowling, Strathy & Henderson.

The year 2000 is an interesting time to be practising law. More than ever before, clients are asking questions to which there are no answers. On the so-called information highway, there are vehicles that defy description as well as traffic signs – laws and regulations – that are being twisted, subverted and just plain ignored.

I won’t presume to cover all the emerging legal issues in one column. These are just a few of the things that have caught my attention lately.

Cybersquatters in jeopardy: The practice of registering famous brand names as domain names for sale to the highest bidder – or rightful owner – is much less attractive now that the U.S. Anti-Cybersquatting Act has become law. Cybersquatters who register third-party trademarks as domain names face penalties of up to US$100,000 per name if the trademarks are protected under U.S. law. This will definitely deter would-be pirates in the United States. However, Canadian trademark owners may still need Network Solutions and other registrars to resolve disputes over pirated domain names.

The ‘.ca’ Register: Every Canadian company that has filed for a .ca domain name knows that changes to the process are desperately needed. These changes have been promised for months and are still pending. In the very near future, we are told, it will be possible to register more than one .ca name, to register as an individual rather than a corporation and to avoid the cumbersome sub-domains (for example, ‘halifax.ns.ca’). The .ca register has been underutilized. There are only 70,000 .ca registrations (compared to over seven million dot-coms). Hopefully this will change.

Cross-border Information Shopping: The recent proliferation of company and product Web sites raises some interesting dilemmas. Many products – like foods, drugs and cosmetics – are heavily regulated in most countries. National laws define what products can be sold, what claims can be made and whether an intermediary – like a doctor or pharmacist – is required. But what happens when Canadians have easy and immediate Internet access to products and information that are prohibited in Canada?

Two situations are becoming commonplace. There are at least hundreds of online pharmacies through which Canadians can order prescription drugs without a prescription as well as drugs that are not approved for sale in Canada. Health Canada and many pharmaceutical companies are less than pleased with this situation but barring inspection of every shipment at the border, the ‘illegal’ drugs keep coming in. In fact, Health Canada has a policy that permits importation ‘for personal use only’ of a three-month supply of many non-approved drugs. Needless to say, the policy does not apply to narcotics.

The information dilemma is more nuanced. Take milk and osteoporosis for example. In the United States, you are permitted to claim that adequate calcium consumption helps prevent bone loss and the risk of osteoporosis. In Canada, this claim is strictly off-limits.

But say a U.S. Web site discusses the link between milk consumption and osteoporosis risk reduction along with other information that is perfectly legal in Canada. Could Canadian milk producers advertise the U.S. Web site address? This would, in effect, direct Canadians to a mixture of ‘legal’ and ‘illegal’ information and allow Canadian milk producers to indirectly advertise a non-approved claim.

On the other hand, the Web site is there for Canadian consumers to discover. The best view is that a simple mention of the URL does not contravene Canadian law. Time will tell. But regulators cannot ignore that the cat is out of the bag in terms of Internet content.

Sexy Technology: The next new medium will be interactive television with data transmitted over the Internet through set-top boxes.

Patent-pending technology will enable advertisers to deliver viewer-targeted advertising and information within ITV environments. Commercials can be targeted to ITV subscribers based on a combination of fine-tuned demographics, profiles, viewing activities and subscriber-registered interests. The customization can be as simple as a message scrolling across the screen or as complex as a complete video substitution. This means that the commercials shown on my TV during Law & Order reruns could be completely different from those shown at the same time on the same channel to my next-door neighbour.

This is the future and it is very strange. The new millennium indeed.

Susan Vogt can be reached by phone at (416) 862-5439 or by e-mail at vogte@gowlings.com

In Brief: The Garden picks CDs to take on daily creative leadership

Plus, Naked names two new leaders of its own and Digital Ethos comes to Canada.
TheGarden_FL

The Garden promotes two creative directors

ACDs Lindsay Eady and Francheska Galloway-Davis have taken over responsibility for day-to-day creative leadership at The Garden after being promoted to creative director roles.

The pair will also help develop the agency’s creative talent, formalizing mentorship and leadership activities they have been doing since joining the agency four and three years ago, respectively. In addition to creating the agency’s internship program, the pair have worked on campaigns for Coinsquare, FitTrack and “The Coke Challenge” campaign for DanceSafe.

Eady and Galloway-Davis will continue to report to The Garden’s co-founder and chief creative officer Shane Ogilvie, who is stepping back from daily creative duties to a more high-level strategic role, allowing him to focus on client relationships and business growth.

Naked Creative Consultancy names new creative and strategy leadership

Toronto’s Naked Creative Consultancy has hired Yasmin Sahni as its new creative director. She is taking over creative leadership from David Kenyon, who has been in the role for 10 years and is moving into a new role as director of strategy, leading the discipline at the agency.

Sahni is coming off of three years as VP and ECD at GTB’s Toronto office, where she managed all the retail, social and service creative for Ford Canada. She previously managed both Vice Media and Vice’s in-house ad agency Virtue.

Peter Shier, president of Naked, says Sahni’s hiring adds to its creative bench and capabilities, as well as a track record of mentorship, a priority for the company. Meanwhile, Kenyon’s move to the strategy side, he says, makes sense because of his deep knowledge of its clients, which have included Ancestry and The Globe and Mail.

Digital Ethos opens a Toronto office

U.K. digital agency Digital Ethos is pursuing new growth opportunities in North America by opening a new office in Toronto.

Though it didn’t disclose them, the agency has begun serving a number of North American clients, and CEO/founder Luke Tobin says the “time was right to invest in a more formal and actual presence in the area.” whose services include design, SEO, pay-per-click, social media, influencer and PR,

This year, the agency’s growth has also allowed it to open an office in Hamburg, Germany, though it also has remote staff working in countries around the world.

Moray Hickes was the company’s first North American hire as VP of sales, tasked with business development in the region.