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

From Karen Howe’s dining table: Creativity, COVID and Cannes

ICYMI, The Township's founder gathers the best of the best campaigns and trends so far.

Cannes Base Camp

By Karen Howe

I’m attending Cannes from the glory of my dining room table. There’s not a palm tree in sight, yet inspiration and intel are present in abundance.

Cannes Lions is a global cultural pulse check. The social course correction in the wake of the murder of George Floyd and BLM has delivered far greater diversity in the judging panels as well as the work. And we are all better for it.

I’m proud to say that creativity defeated COVID, which speaks to its power. Great work and big ideas flourished, despite unimaginable odds.

The work from the past two years spans a vast emotional range. From the profundity of Dove’s “Courage is Beautiful” to the hyper exuberance of Burberry’s “Festive,” they are opposite ends of the spectrum, but each answered a need in us.

Take note, the ascendency of gaming cannot be understated. Smart brands have embraced the channel. It makes sense, because gamers participate to meet others around the world, not just to play. And they represent a huge and powerful community. That’s why QSR Wendy’s gamified their iconic gal in RPG’s Feast of Legends.

Burger King sponsored the unknown Stevenage Football Club, transforming the team into online heroes and vaulting BK into the fray at the same time. Once again, the brand embedded itself in culture.

The birth of gaming tourism arrived when Xbox snuggled up to travel guides and created a brilliant baby: a travel guide for gaming worlds. It, too, embedded itself in culture.

From the standpoint of social good, Reporter Without Borders showed how it worked with Mindcraft for its “Uncensored Library” to bypass press censorship, with Minecraft providing a loophole to a space where young people could be educated. It provided youth with a powerful tool to fight oppression: truth.

COVID changed us in unexpected ways. We learned how to pay attention again and there was a notable lack of 30-second commercials. Instead, longer format content thrived. Apple’s WFH was seven minutes long. Entertainment reigned king, so we find ourselves returning to our advertising roots.

Seeing competitive brands form partnerships was one of this year’s other great surprises. The brilliantly simple “Beer Cap Project” by Aguila to reduce binge-drinking saw the brand reach out to competitive beers to join in. Aguila put incentivizing (keyword: free) reminders to drink water, eat food and get home safely on its bottle caps from all sorts of fast food chains, ride-share co’s and H2O brands.

On a personal level, I’m so proud of Canada again this year. Given that it was two years of work from all over the world being judged, even making the Cannes shortlist was an accomplishment. Canada is herding in the Lions in tremendous numbers – and it’s not even over. Fingers are crossed.

KAREN-HOWE-PIC-higher-rez-300x263Karen Howe is a Canadian Cannes Advisory Board Member and founder of The Township Group