A Legal IP & Advertising Primer for Entrepreneurs

Presented by: Jacqueline Dinsmore

Cognition LLP

IP Protection

Trademarks

• Trademarks: words, logos or symbols that identify your products or services and distinguish them from those of others.

• Should be distinctive and not descriptive or it may be objected to• Must be in use to maintain registration• Search www.uspto.gov and www.ic.gc.ca (as well as NUANS and google search)• You develop trademark rights just from usage in advertising and selling the

related product or service• Mark any usage with a TM • Registration is not necessary, but gives you rights across the country, can give

indefinite ownership, allows enforcement over social media channels (e.g. Twitter) and provides clearer ownership ®

• Ensure that you develop and enforce trademark usage guidelines• Registration - $1500 - $2500 plus more for international

General Advertising Principles

• Any time a claim is made in an ad that might “reasonably be taken as true” must be substantiated

Examples

• “Our school has a class ratio of 10 students for every teacher”

• “We were ranked #1 in Grade 3 mathematics in Halton County”

• “90% of parents would prefer to send their children to private school, if they could afford it.”

• “Our teachers are the best teachers in the GTA’• “99% of Pinewood students are accepted into

University”

Puffery

• An exception to the requirement to substantiate is when the claim is so outlandish that a consumer would not reasonably rely upon the claim or believe it to be true

• The test- “Would a reasonable person rely upon the representation?’

• Example: “We are the best school in the entire universe.”

• Example: “Our teaching works wonders”

Advertiser’s Opinion

• A claim that consists solely of an advertisers opinion also does not require substantiation

• If a company says its products are “good”, the consumer knows that he or she is relying only on the company’s opinion of its products.

• However, don’t disguise a fact as an opinion. Example: “We think our vacuum cleaner is twice as powerful as the competition’s.”

Tactics to Deal with Unsubstantiated Claims

• The Weasel Claim- “Our detergent leaves dishes virtually spotless”

• The Unfinished Claim- “ABC gives you more”• The We’re Unique Claim- “If it doesn’t say Downy, it

can’t be Downy”• The Water is Wet Claim- “Our mascara greatly

increases the diameter of every lash”• The So What Claim- “Our soup has not one, but two

beef stocks”

Comparative Advertising

• 4 out of 5 customers prefer Pepsi to Coca Cola

Be Careful!- Get legal input before making comparisons- There may be special trademark rules if you use a

competitors name- Don’t rely on stale data- Don’t underestimate the potential damage of a

comparative claim gone bad!

Who Are We?

• Bay street senior counsel (average 15 years of experience) (Blakes, Torys, Stikemans etc.)

• Former In House lawyers (e.g. Canadian Tire, RIM, Nortel, Sun Microsystems, CBC, Pepsico, Hewlett Packard, Deloitte etc.)

• 1/3 to ½ the cost of traditional counsel due to the way we have stripped overhead

• 36 lawyers -located in Toronto, Ottawa & Calgary• Servicing over 400 companies, institutions and

organizations• An outside firm that behaves like in-house counsel• Available on a flexible/customizable basis• Integrated with your team

Need Help? Please give us a shout!

• Jacqueline Dinsmore• 416-882-1977 (cell)

• jdinsmore@cognitionllp.com• www.cognitionllp.com