Sports & Law – 3rd Period in the Game of Advertising and Marketing

Posted on by Gordon B. Greenwood

We are heading into the closing moments of the 3rd period of this blog…

 

Terms and Conditions – This phrase is most often used in relation to websites or promotional contests which are run by a product sponsor. When it comes to the terms and conditions of a website, one has to not only address the commercial aspects but also look to the privacy requirements. In addition, the website terms and conditions are where consumers go to find detailed and relevant information, which may include the extent of disclosure and use rights for personally identifiable information by the sports entity (in its broadest terms), the company itself and those affiliated with them.

 

When one looks at the terms and conditions in the context of a promotional contest, there are numerous details relating to contest duration, awarding of prizes, prizing details and value, method of entry, odds of winning, regionality etc. which must be disclosed as required by the Competition Act and the Criminal Code of Canada. However, the commercial meat on the bone of a promotional contest with a sports entity is to keep the product and the entity closely tied so the brands of each mesh to make participation in the contest attractive to consumers. When doing terms and conditions, rules and mini-rules for a promotional contest, the company or promotional agency should make sure to allow enough time before the launch of the promotional contest to have these documents also reviewed by the sports entity and their appropriate representatives.

 

Spokesperson – The creative mind of an advertiser should be aware of both the discipline and the ego of an athlete. The sports entity, whether it be an athlete, team, or other organization, should be aware that creativity cannot survive in the realm of rigidity and routine. Contracts between sports entities and companies must build comfort based upon a firm understanding of their relationship while permitting a degree of flexibility which is so necessary to make any relationship work. The ego of an athlete must coexist with a company’s perception of the reputation of its brand. Brand reputation is a brand owner’s ego. Sports entities and companies are fiercely protective of their images and intellectual property. Where a company is using anyone, sports entity or otherwise, as a spokesperson or endorser of a product or service it is very important to ensure that all statements made by this person in relation to the company’s product or services are true. Historically, there have been occasions where people have endorsed products which they have never used, and they and the company have been penalized for this. Ensure that never happens to you. Also, as the company entering into an agreement with a spokesperson, you should make certain that the spokesperson truly believes the statements they are making; that the statements are true; that the spokesperson warrants that they have actually used the product are continuing to do so during the endorsement period; that they have not endorsed or been a spokesperson for a competitive product in the past and that any contractual arrangement with them will bind them not to be a spokesperson for, or endorse, a competitive product for a reasonable period of time after conclusion of your contract with them. As mentioned in an earlier “period” of this blog topic, this is a reminder to never forget to include a morals clause in your spokesperson agreement.

 

Stay tuned for the post-game summary of this Sports Law blog. Three periods of blogs highlighted into one.

Advertising: Can they really say that?! Advertising self-regulation in Canada – Part 1

Posted on by Mary G. Griffith

Many people may wonder as they watch commercials on TV or read the incessant stream of banner ads or pop ups on their digital devices, if anyone is checking on some of the claims being made, or even how to complain about tactics or approaches that they may find offensive.

What many may not know is that the Canadian Code of Advertising Standards (the “Code”) sets out the criteria for acceptable advertising in Canada. The Code is administered by Advertising Standards Canada (ASC) which is the self-regulatory body for Canadian advertisers. The Code is divided into 14 provisions, covers a variety of areas, and mirrors many of the statutory requirements respecting advertising that are contained in various Federal and Provincial laws. It applies to almost all advertising, with the exception of political and election advertising, but excludes foreign media (unless it is carrying an advertisement for a Canadian entity) and product packaging.

The Code has also been supplemented from time to time with Interpretation Guidelines dealing with Gender Portrayal, Motor Vehicle Advertising, Environmental Claims, the use of Humour and Fantasy, Advertising to Children, and Testimonials/Endorsements.

The 14 provisions cover:

  1. Accuracy and Clarity
  2. Disguised Advertising Techniques
  3. Price Claims
  4. Bait and Switch
  5. Guarantees
  6. Comparative Advertising
  7. Testimonials
  8. Professional or Scientific Claims
  9. Imitation
  10. Safety
  11. Superstition and Fears
  12. Advertising to Children
  13. Advertising to Minors
  14. Unacceptable Depictions and Portrayals

The Code is rarely updated, however some recent amendments were made, effective October 1st, 2016. One amendment of particular note is that the provisions under Section 1(e) have been amended to require an advertiser (on request) to provide the evidence supporting a claim they are making. It remains to be seen if this is going to be the basis for future controversy, or even litigation. The Clearance Division (which I will discuss in a subsequent blog) can require attestation with regard to claim support. This, in my view, is appropriate. However, a requirement to produce evidence which may be proprietary, particularly when ASC may not have the internal expertise to analyze it (if it is technical or clinical research) is of concern and the advertiser may not want an external expert to review it. In addition, production of this information may be compelled by other authorities, such as courts or the Competition Bureau and therefore ASC may not be able to protect it from becoming public.

It is always prudent to have an experienced marketing and advertising lawyer review your campaigns as they are developed to ensure compliance with the Code, as well as other Statutory requirements.

Integrity and Good Governance is more than Paperwork

Posted on by Michael A. Chambers

Ensuring integrity and good governance in an organization requires much more than papered principles of good governance. It requires organizational buy in. And, organizational buy in requires those who make up the organization, from top to bottom, to embrace and adopt integrity and good governance as the way business is done each and every day on the job. In other words, it’s the people in the organization that either bring integrity and good governance to life or leave it as thin wallpaper covering over the cracks that don’t change in the operation of an enterprise.

To have it work, really work, leaders in managing the organization have to manifestly treat integrity and good governance as an integral part of business every day. It can’t be filed away to be just pulled out and referred to in response to a crisis that may arise. It must become the way the organization does business, not some of the time, not most of the time, but rather all of the time. It’s similar to leaders on a sport’s team – if staff see that their leadership has incorporated integrity and good governance in all that they do, staff will follow the lead and be sure to get on board, i.e. support the team.

An organization’s true test of whether integrity and good governance has been truly woven into the fabric of the organization is when a situation arises that may cause embarrassment for the organization. This is when the going gets though, and as the saying goes, the tough get going. It’s easy to be a fair weather supporter of integrity and good governance. It takes true commitment to stick with these principles when their application discloses that something or someone within the organization has been or acted at odds with them. One route is to stick-handle the situation through the papered principles of integrity and good governance and endeavour to come out the other side unscathed and unnoticed. The other route, the one that will demonstrate an organization’s true adoption of these principles, is to permit integrity and good governance to carry the day, acknowledge their breach, respond with appropriate action, and move on with continued commitment to their proper place in the make-up of the organization. This takes the right decisions to be made by people, by leaders, within the organization. Paper alone cannot do it.

So You’ve Been Appointed an Estate Trustee (aka Executor), Now What? – Part 6

Posted on by Megan E. Fife

Reminder: this series of blog posts assumes the deceased died with a Will. Also, keep in mind that the normal caveat applies: this information only applies to estates administered in Ontario and should be used as a guide only! Speak with a lawyer about your specific situation, as every case is different.

You’re almost done! The estate is being administered and the taxes have been taken care of. You’ve applied for a Clearance Certificate from the Canada Revenue Agency (CRA) and have finally received it (this can take a few months to process). What’s left to do?

At this point, you should have money left over from what you held back in the estate to pay any taxes owing (see Part 5 of this series). There should also be money left in the estate to pay any accountants’ fees and legal fees that might still be owed (see Part 3 of this series). Now, the final step is to ensure that all of the estate’s bills and accounts are paid in full, before you distribute any remaining funds to the beneficiaries. My recommendation is to get a final bill from both the accountant and your lawyer, before you begin the process of any last distribution to the beneficiaries.

Just like the previous distributions to the beneficiaries, this final distribution should be accompanied by a Receipt and Release document, which the beneficiary signs, acknowledging receipt of the funds and releasing you, as Estate Trustee, from all further liability in relation to that distribution. While we say that this document should ‘accompany’ the distribution, in reality the beneficiary should sign this document before they actually receive the funds themselves. The only difference between the previous release document(s) and this final distribution’s document is that this time, the document they sign will be a Final Release, releasing you, as estate trustee, from all liability regarding the distribution of the estate and acknowledging that they, the beneficiary, have received their full percentage share of the estate, as described in the Will and as evidenced by your estate accounting (see Part 4 of this series).

Once that final distribution has been made, the bills have been paid, and the estate account has a balance of zero and can be closed, your job as estate trustee is complete!

As noted throughout this blog series, an estates lawyer, as well as an accountant, will be valuable assets to any estate trustee throughout this process. Consult with them, involve them early and most importantly, keep detailed records of your actions and transactions as estate trustee from the very start. If you follow those tips, barring any unforeseen complications, your role as estate trustee should progress smoothly.