Advertising and Marketing: Don’t be Scared to Include your Advertising Lawyer!

Posted on by Mary G. Griffith

Most of us procrastinate when it comes to doing things we don’t enjoy. Unfortunately that sometimes happens when advertisers or agencies are told to “run it by Legal”.

The perception is often that the lawyer is the killjoy (“Oh no! Legal is SURE to say no!”); that they don’t understand the consumer; the market; the competitive pressures on the brand; etc. In particular, surely a lawyer (with all the stereotypical images that may evoke) is the antithesis of the creative, artistic advertising and marketing mind?!

While there is no doubt that legal is not as close to the front line of the business, or as steeped in the particular issues facing the brand, avoiding sharing creative ideas until the “11th hour” is usually counter- productive. Waiting until an idea is developed and finalized, with the client (an agency) invested in a particular execution or program, makes the lawyer’s job harder and increases the risk that there will be an unresolvable issue that could kill what could have been the next “great idea”. The risks of non-compliance with the myriad rules and regulations governing advertising and marketing are very significant – both financially, and to a company’s reputation – and your lawyer’s first responsibility is to steer you clear of those risks.

Better to involve legal at the concept stage, make them part of the development team so that potential pitfalls can be identified and avoided early on and great ideas can grow and bear fruit. Who knows, your lawyer may even have some creative insights to ensure that the great idea CAN be exploited to the max!

Avoiding Surprises – Tips from a Family Law Lawyer – Part 2

Posted on by Michael A. Chambers

Part 2 of my “Avoiding Surprises” series deals with an aspect of family law which is often a source of confusion and surprise for common law spouses: the mistaken belief that common law spouses, once they reach the “common law” threshold of time that they have lived together acquire all the same property rights as married spouses in the event of separation. Not true.

There is reason for confusion here because the laws on this point vary from province to province. However, in Ontario, the law is clear. Common law spouses have none of the property rights on separation that married spouses have. The only right that they acquire upon becoming common law, which in Ontario is after having lived together for 3 years as a couple or after having lived together “in a relationship of some permanence” if they have a child, is the right to bring a claim for spousal support against the other common law spouse in the event of subsequent separation. Don’t be surprised to learn of this on your separation if you are a common law spouse.

One qualifying point to note is that a common law spouse can acquire an interest or entitlement to compensation out of property of the other common law spouse in the event of separation, under something called a constructive trust. However, these types of claims are exceptional, usually require at least a somewhat long period of cohabitation, require a direct or indirect contribution to the property of the other spouse, and are generally complex to prove.

Once again, a Cohabitation Agreement (the equivalent of a Marriage Contract for common law spouses) can, if the common law spouses wish, provide and ensure that they do have the same property rights as married spouses on separation. This can be all of the same rights or just some of the same rights, whatever is the preference of the common law spouses.

“Will You Be My Valentine?” A Lawyer’s Lighthearted Look at the Risk of Romance

Posted on by Gordon B. Greenwood

Before answering this question, or asking it, we strongly recommend that you consult legal counsel.

If you are asking someone to be your valentine, that is likely an offer open to acceptance. Before extending this offer to someone you should consider whether more specificity is required such as: Will you be my valentine exclusively? If you will be my valentine does it mean that I am required to reciprocate and be your valentine in return? If the request to be my valentine is written or verbal, what are the indicia of acceptance? What is the valuable consideration being exchanged between the parties?

If you are accepting to be someone’s valentine you should make sure that you understand the terms of such arrangement especially as to its duration, the extent of valentine-like performance required, any reciprocal expectations and whether or not there is a confidentiality element which accompanies it.

It is also incumbent upon both parties to a valentine relationship to establish its boundaries and whether or not it will be a customary or conventional valentine affiliation. If customary, then the normal rules of valentine-ism will apply, as understood by the general population where you reside, and accepted as part of common practice. If conventional, as in written down by convention or contract, then all of the points referred to above should be clearly expressed. Consider having each signature witnessed, although it need not be signed under seal unless required by the applicable governing law.

Beware the risk of agreeing to be one’s valentine and the attendant risk either withdrawing your valentine consent or breaching the valentine relationship. You may have entered into a legally enforceable arrangement and may find yourself involved in a law suit arising from breach of contract, commission of a tort such a negligent misstatement, or being accused of fraud. The damages, if recovered, may be similar to those arising from a breach of promise to marry and may include losses resulting from the preparation to be a valentine, the cost of valentine paraphernalia unused, damages for loss of reputation or emotional distress, fraud and possible negligent misrepresentation.

We would also caution against engaging in valentine-like behaviour which may lead another party to reasonably assume that a valentine-like relationship has been entered into through partial performance or implied consent. Such indicia could include the giving of heart shaped chocolates, a special dinner on February 14th, a gift of red and/or white lingerie, the playing or singing of romantic music, the offering of floral arrangements, consumption of effervescent alcoholic beverages, the drawing of hearts and so on.

The dangers of St. Valentine,
Could lead to grief and strife.
A simple line like “please be mine”,
Could completely ruin your life.

Before you send that gift or card,
Or accept one sent to you.
Consider that life could get hard,
Should your cupid choose to sue.

vday

Advertising and Marketing: Truth, Fiction or a Combination of Both?

Posted on by Gordon B. Greenwood

Whether or not an ad, label or promotional material is going to be considered misleading is not always an easy thing to figure out. Is what you say on your label and in your promotional material true and verifiable? While each individual statement or picture may itself be true, it is the overall impression which is created when all of those words and images are combined that matters.

Is a testimonial a true testimonial from an independent person or does it come from you or one of your employees? Do you have adequate and proper testing to support product efficacy and how long it lasts? How gullible does a consumer have to be before he or she is entitled to protection? Even if the Competition Bureau or Provincial authorities don’t appear to be concerned, are you at risk from your competitors, from consumers and from class action lawyers? A fantastic promotional idea only remains fantastic if it doesn’t come back to bite you! All of these, and others, are things you should question so often that they become forefront in your mind on every review…obviously look for the right answers as well.

Is each component and the overall perception created by your ad, true and verifiable? Are any disclaimers required and, if so, are they clear in terms of verbiage, location and legibility? Disclaimers do not protect you from misleading claims! Sure there is more, but you get the idea!