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Doing Business in Canada Series: Advertising in Canada

April 2010
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By Brenda L. Pritchard

With a well-educated population, a vibrant media industry and relatively clear regulations relating to advertising and promotions, Canadians produce some of the best advertising creative in the world.

However, foreign advertisers should be aware of the unique aspects of Canadian law and culture that govern advertising in Canada. For example, in the province of Québec, language laws mandate equal prominence of French on all packaging, product warnings and instructions, and greater prominence at point-of-sale and—in many circumstances—in advertising and promotions. This requirement reduces the amount of space available to advertisers, especially in the case of packaging for national products.

Packaging and Labelling

All pre-packaged products sold in Canada are governed by a series of federal packaging and labelling regulations. Primarily designed to protect consumers from false claims and harmful products, certain items, including food and beverages, health, tobacco and cosmetic products are subject to more stringent labelling requirements. Federal packaging laws also stipulate that basic information on all products be provided in both French and English, although outside of Québec, prominence of any particular language is not mandated. Certain foreign-made products sold in Canada also require country of origin identification under the Marking of Imported Goods Order.

IP and Copyright

Under the federal Copyright Act, songs, logos and even slogans used in Canadian advertisements are protected by certain statutory rights. Unlike the special provisions set out in the U.S. Lanham Act, use of competitor’s logos or packaging in comparative advertising is largely prohibited in Canada, and there are no “parody,” “fair use” or “fair dealing” defences in commercial advertising. Canada also differs from the U.S. in that the use of service marks in comparative advertising or at point-of-sale also runs the risk of infringement action. Canada adheres to the Paris Convention, but has not yet signed the Madrid Protocol, meaning that while many trade-mark rights are guaranteed, all trade-marks must be individually registered in Canada, except under a limited number of circumstances. The Canadian Intellectual Property Office maintains a database of registered and pending trade-marks, and does not allow confusing or similar marks.

Contests and Promotions

The legal rules that govern contests and promotions in Canada are not particularly complex, but do contain a number of unique provisions. Lotteries, considered as any scheme that awards a prize based on chance and where money has been paid to participate, are illegal under the Criminal Code. To avoid being considered an illegal lottery, contests must include a skill-testing element (commonly a mathematical question), and generally require a no-purchase option. There are also provisions under the Competition Act that mandate disclosure of certain contest information including regional allocation, odds of winning and prize values.

Puffery and Hyperbole

While we might believe it to be true, Canada can not claim to be the “best country in the world for advertising.” That is because in Canada the scope for arguing that an ad claim is just “puffery” (a purely self-congratulatory statement of opinion) is narrower than in certain other jurisdictions. If the claim can be seen as relating to the performance, efficacy or length of life of the product, it can’t be made without substantive evidence to support it. However, a claim that is exaggerated to the point where it cannot be reasonably relied on, is generally permitted unless it relates to the performance or superiority of a product.

Canadiana Issues

Canadian regulations also extend legal protection to certain symbols and icons of Canada. For example the use of real or costumed RCMP officers, or the words “Royal Canadian Mounted Police,” “RCMP” or “Mountie” requires consent from the RCMP. By the same token, Canadian flags, the maple leaf symbol, coins and bank bills are all restricted in terms of their use in advertising. However, the national anthem ‘O Canada’ is in the public domain and is therefore fair game.

Advertising in Québec

Beyond the language issues already discussed, Québec has a unique culture and heritage within Canada, and has enacted a number of regulations to protect both. Likely the most important to foreign advertisers is Québec’s Consumer Protection Act, which applies to anyone who advertises or sells products or services to consumers in Québec, and imposes strict requirements on the quality and accuracy of advertising. Many Canadian advertisers choose not to open contests to Québec residents due to the myriad of additional rules enforced by the provincial Régie des alcools, des courses et des jeux. In many cases, national advertisers are forced to make a choice: create parallel adverting campaigns for English and French Canada, or miss out on advertising to the second most populous Canadian province.

Reach Your Audiences with Gowlings

With the proper insight and counsel, advertising in Canada can easily be a creative and highly rewarding proposition for foreign companies with Canadian interests. At Gowlings, our clients know they can rely on our creative and pro-active approach to ensure their campaigns meet industry and legal requirements while preserving the integrity and creativity of their ideas.

Articles and materials provided as part of Gowlings’ Doing Business in Canada are for information purposes only and are not be taken as legal advice. Never disregard professional legal advice or fail to seek it based on information provided here.

Gowlings is a leading Canadian law firm offering a diverse range of services to help domestic and international organizations achieve their business objectives. Recognized for excellence in business, advocacy and intellectual property law, Gowlings provides dedicated industry expertise in a number of sectors including natural resources, energy, infrastructure, government relations, life sciences, financial services, technology and manufacturing. The Firm combines traditional legal services with innovative solutions in areas such as transfer pricing and tax, and occupational health and safety, to provide business entities with a competitive advantage. Characterized by national strength and regional focus, Gowlings has over 700 professionals across offices in Montréal, Ottawa, Toronto, Hamilton, Waterloo Region, Calgary and Vancouver.

The Firm also provides intellectual property services in Russia and the CIS through its office in Moscow, and energy, resource and infrastructure expertise through its office in London, U.K. Visit us at gowlings.com.

NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowlings professionals will be pleased to discuss resolutions to specific legal concerns you may have.
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