Talking Shop January 2021

This newsletter focuses on key news and updates for retail and consumer-facing businesses around the world, including our latest briefings on the COVID-19 pandemic and its impact on the sector. You can find all our COVID-19-related updates for retail and consumer businesses on our dedicated InFocus page  here.

At the end of the newsletter, you can find details of our recent news and events, which we think might be of interest to you and your team.

Please get in touch, or visit our webpage for more information about Bird & Bird's Retail & Consumer Group.

In this newsletter:

• Advertising & Marketing
• Case Update
• Competition
• Consumer Protection
• Cybersecurity
• Employment
• Franchising
• Intellectual Property
• Regulatory
• Tech
• News & Events

Advertising & Marketing

Fashion x Gaming: fashion catches the gaming bug

While COVID-19 continues to restrict our daily lives, the gaming and esports landscape is booming. In conjunction with this growth, there is an upward trend in fashion brands wishing to use gaming and esports to market or advertise their products through in-game items, skins and broader brand partnerships. This article looks at some of the legal issues arising out of in-game partnership opportunities for fashion brands, as well as other legal issues more generally for brands (fashion or otherwise) looking to leverage the popularity of gaming to promote their products.

Influencer marketing Q&A

How do brands and influencers maintain authenticity and integrity? How important is the contractual relationship between brand and influencer? What changes might we see in the brand and influencer community over the next 12 months? These are just some of the questions Graeme Payne, Head of Bird & Bird’s Retail & Consumer Group, asked content creator, Adrienne Herbert, and Founder of Creative Impact, Fab Giovanetti, in this interview about influencer marketing. 

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Where do we stand with Czech influencer marketing?

Where do we stand with influencer marketing and enforcement actions in the Czech Republic? Although the phenomenon of influencer marketing experienced its boom in the Czech Republic a few years ago, the decision-making practice of the state authorities in this area is still lagging.

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As the next big thing after the traditional “celebrity endorsements”, engaging influencers, also referred to as Key Opinion Leaders (KOLs) has become one of the most effective ways to create brand exposure, engage target consumers and drive sales revenue in China. Chinese consumers are more likely to consider buying a product if they see it discussed positively on platforms like Xiaohongshu or WeChat. Influencer marketing allows brands to locate and advertise directly to their target audience. Although this marketing method has been around for many years now, the legal framework is still underdeveloped and partly unclear.

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Case Update

French Supreme Court aligns its position with ECJ’s decision regarding commercial agency

In a recent decision delivered on 2 December 2020, the French Supreme Court overturned a decision of the Paris Court of Appeal that had denied a person the benefit of the status of commercial agent on the grounds that he was unable to negotiate the prices set by his principal.

In this case, “Editions Atlas”, a company specialised in the publishing and marketing of leisure products, had signed a contract with Mr “O” on 20 December 2006, an agreement to entrust him, for an indefinite period, with the prospecting of its customers in a geographical area. After ceasing to perform his contract on 1 July 2011 and concluding an employment contract for an indefinite period as an exclusive sales representative with a third party company on 4 July, Mr “O”, sued Editions Atlas for termination of the contract and payment of various indemnities, claiming the status of commercial agent.

Competition

The 2021 outlook for supply and distribution: in the search for relevant rules for the coming years

Online platforms and e-commerce have significantly changed the business environment since the current Vertical Block Exemption Regulation (“VBER”) was adopted. They have had a huge impact on the way business is conducted and on the behaviours of consumers who can switch within different online channels, and between online and offline channels. These developments have led some businesses to create seamless omnichannel environments, while others have decided to promote their physical stores at the expense of online sales.

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Consumer Protection

The effect of Brexit on UK consumer protection law

Over the last decade, a distinct body of law has arisen that regulates the contractual relationships formed between businesses and consumers, often known as consumer protection law. The development of this area of law has been principally driven by the EU through a series of directives and regulations. This article explores how consumer protection law in the UK has been affected by the UK’s withdrawal from the EU and the divergence that may follow in the coming years.

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A new EU Directive signals the start of collective actions on behalf of the EU consumer

Collective or class actions are not new, but they are traditionally thought of as a phenomenon of US and Australian litigation. In the last few years, however, some European countries have started to embrace the concept and revamp their laws and procedures to enable people to club together to seek judicial remedies in certain types of action.

Different countries have gone to different lengths in this respect; jurisdictions such as the Netherlands have been hailed as particular hotspots for collective actions- and laws which arm consumers with greater rights, such as GDPR, have certainly driven on this new trend, albeit in a somewhat piecemeal manner to date. However, this is set to change very soon. The EU has just passed a new Directive which aims to harmonise collective redress mechanisms for consumers across all Member States. This is a watershed moment for European class actions.

Who is a consumer? Changes coming in Australia from July 2021

The passing of the Treasury Laws Amendment (Acquisition as Consumer – Financial Thresholds) Regulations 2020 (Cth) (Regulations) on 9 July 2020 marked a significant change in Australia’s consumer protection regime. The Regulations broaden the application of the Australian Consumer Law (ACL), (Schedule 2 of the Competition and Consumer Act 2010 (Cth)), by expanding the definition of “consumer”.

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Cybersecurity

A curb on what personal information is necessary for your app: proposed rule by the Cyber Administration of China

Currently, Article 41 of the PRC Cyber Security Law provides that personal information should only be collected if it is necessary. In the absence of judicial guidance, one of the challenges faced by app operators and individuals alike is which piece of personal information can be lawfully collected without falling foul of this legal requirement and will not be regarded by its supervisory regulators as conducting excessive collection. For example, can an app operator insist on having access to the individual's contact list before the individual can download the app?

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Employment

Modern slavery in retail supply chains: dealing with investigations

Ensuring the rights of workers and working conditions in supply chains should be a core part of corporate compliance with the Modern Slavery Act 2015 (the "Act"). However, investigations highlighting poor pay and dreadful working conditions of workers have been the subject of sensational newspaper headlines over the last 6 months.

We look at the far-reaching consequences for businesses of such reports which go beyond the commission of offences under the Act. Investigations may uncover other offences such as fraud, tax evasion, health and safety breaches and immigration offences to name but a few. Damage to a brand following such allegations is likely to last long after the headlines.

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The impact of the EU-UK Trade and Cooperation Agreement on UK nationals

Free movement of persons between the UK and EU ended on 31 December 2020. In this article, we aim to raise awareness of the potential obstacles employers now face when sending their UK national employees to the EU for business purposes.

The EU-UK Trade and Cooperation Agreement (‘TCA’) was recently implemented in the UK as a domestic legislation. It is an agreement covering trade and services between the UK and EU from 1 January 2021. The EU Parliament has yet to vote on the TCA, however, it is deemed provisionally applicable in the EU from 1 January 2021.

Franchising

Looking beyond COVID-19: renegotiating the new franchise landscape in Singapore

What first started out as reports of “pneumonia” has since claimed more than 1.4million human lives around the globe. But what is most unexpected about the COVID-19 virus is its potential to infect and destroy far beyond its host. The pandemic has left scars on the economy, communities and businesses – with yet no end in sight.

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Intellectual Property

A case in 'point': Rothy's succeeds in perhaps the UK's final Community design case

Rothy’s, the popular shoe company from California, prevailed over Austrian company Giesswein — in what might be the UK’s final ruling on EU design rights. The case demonstrates the importance of careful detail in design registrations. Rothy’s asserted its registered and unregistered designs of knitted ladies’ flat shoes, against Giesswein’s similar knitted shoes. The Judge (Deputy High Court Judge David Stone) found that Rothy’s’ Registered Community Design and Unregistered Community design right in the Rothy’s ‘Pointed Loafer’ shoe were valid, and that Giesswein’s ‘Pointy Flat’ shoe infringed the Registered design.

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Regulatory

Ten key points from new, global-first rulebook aimed at online platforms

Members of the European Parliament are vying to have a leadership role in shaping the EU's new rule book for online platforms, as political discussions kick off on the proposed Digital Services Act package. Published at the end of last year, this global norm-setting package comprises: a Digital Services Act, which proposes new content moderation and transparency rules as well as risk assessment management; and a Digital Markets Act which proposes ex-ante rules for very large "gatekeeper" platforms. 

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Tech

Transformation through technology: the dawn of digital banking in Singapore

Four entities were recently issued licenses to commence digital banking operations in Singapore, in a bold move to liberalise the financial industry and accelerate the rise of the digital economy. As one of the biggest technological disruptions seen by the financial services sector in decades, digital banking is expected to be a significant game-changer for retailers and consumers alike. We discuss the opportunities and risks.

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News & Events

Bird & Bird advises Marks & Spencer Group plc on the acquisition of fashion brand Jaeger

This move aligns with M&S’s new strategy of selling other third-party brands to help boost sales. The Bird & Bird team advised on the negotiations with administrators and off-shore sellers as well as some complex IP-related issues. It was a collaborative team effort requiring a coordinated one stop service from the firm’s Corporate, Restructuring & Insolvency and Intellectual Property groups.

M&S was advised by Corporate partner Clive Hopewell, Intellectual Property partners, Tom Snaith and Morag MacDonald and Restructuring & Insolvency partner Joss Hargrave. The team was also supported by Corporate associate Richard Bloomfield, IP associate James Pearson and associate Jordan Cooper from the Restructuring & Insolvency team.

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Bird & Bird ranked as the leading firm globally for Data in 2021 by Who's Who Legal

Our capabilities in specialist industries were also acknowledged, with two commendations for FinTech and a further four commendations in the inaugural review of the international Space & Satellites market. A number of lawyers were singled out for individual praise as “global leaders” in their field:

Bird & Bird launches new Digital Rights & Assets practice

The new group involves colleagues from the IP, Commercial, Corporate, Finance, Regulatory, Competition, Data Protection, Dispute Resolution and Tax teams. The group will develop and deliver a coherent firmwide strategy to help clients across all sectors and jurisdictions build and implement effective digital rights and assets strategies.

Digital information, data, content, currencies and online reputations are a valuable part of the asset base of many of our clients. These digital assets are often essential to the effective understanding, management, operation and growth of organisations, and at the forefront of their thinking as they look ahead to a world of interconnected devices and ultrafast connectivity. Good digital asset management is commonly a core component of compliance and positive reputation management in regulated industries. Investors, buyers and financiers are taking an increasingly keen interest in how digital assets can be leveraged, and many businesses – especially those that are strongly digital - are progressively valued on the scale and potential of their digital assets rather than purely traditional metrics.