Talking Shop October 2021
Written By
Partner
UK
I'm the global head of our International Retail & Consumer sector group. As a partner in our international Commercial group in London, I work primarily with retail & consumer focussed businesses on their domestic and international growth and expansion strategies.
Welcome to the October 2021 edition of our Retail & Consumer news round-up
This newsletter focuses on key news and updates for retail and consumer-facing businesses around the world. 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:
Competition and Consumer Law
UK: CMA launches Green Claims Code
Following consultation with stakeholders, the UK CMA published a Green Claims Code and accompanying guidance on 20 September. The Code is aimed at businesses making sustainability claims when selling or promoting goods and services. Nowadays, this captures most goods and services sold in the UK as consumers increasingly demand more transparency on the environmental impact of their purchases. The Code aims to help businesses understand and comply with their existing obligations under consumer protection law when making sustainability claims.
UK: Anti-virus software firms - are you compliant with the CMA’s new principles for auto-renewing consumer contracts?
On 19th October 2021, the UK’s Competition and Markets Authority published 9 Compliance Principles that anti-virus software businesses using auto-renewing consumer contracts should adhere to. The Principles (which can be viewed in full here) are based on the CMA’s interpretation of consumer protection laws, and predominantly seek to prevent situations in which consumers become locked into contracts that they no longer want or need, or are charged unexpected and/or high renewal fees.
Businesses are encouraged to review their practices with a view to ensuring compliance with consumer protection laws, in order to avoid enforcement actions and any associated reputational damage. We have summarised the 9 Principles to assist you in your own compliance assessment.
Sweden: Major dairy cooperative fined for unlawful exchange of information with competitors during a public tender
Arla Foods AB is a dairy cooperative owned by dairy farmers. Prior to a public tender for dairy products at the end of 2016, Arla Foods exchanged information about, among other things, prices with a competing company.
The framework agreement concerning procurement of dairy products was coordinated by Norrtälje municipality and included several municipalities and municipal companies. Following tips from the contracting authority, the Swedish Competition Authority initiated an investigation during which Arla was required to provide information concerning the public tender in question. Arla expressed that a member of the staff had made mistakes in the tender and reported it to the SCA accordingly. Following its investigation, the SCA filed a lawsuit with the Swedish Patent and Market Court.
Food Regulatory
UK: Natasha’s Law introduces mandatory labelling for pre-packed for direct sale (PPDS) foods
On 1 October 2021, the law on allergen labelling for 'pre-packed for direct sale' foods came into force. The changes under the Food Information (Amendment) Regulations 2019, also known as 'Natasha’s Law', provide improved labelling requirements to help inform safer choices for millions of people in the UK living with food allergens. Following its implementation, food businesses must label all food that is pre-packed for direct sale with the 14 major allergens emphasised in the list.
Franchising
Australia: 7-Eleven to pay $98 million to settle class actions brought by franchisees
In August, 7-Eleven Stores Pty Ltd (7-Eleven) agreed to pay $98 million to settle two class actions filed against it in the Federal Court of Australia by franchisees. The applicants in the class actions alleged that 7-Eleven had engaged in misleading or deceptive conduct under section 18 of the Australian Consumer Law, violated the Franchising Code of Conduct and another industry code, breached various contractual provisions, breached an equitable obligation to account in respect of rebates, and engaged in unconscionable conduct.
The settlement is currently pending Court approval. The application for Court approval will take place at a hearing on 16 November 2021. In determining the approval application, the Court will consider whether the settlement is fair and reasonable.
The Netherlands: After the entry into force of the Dutch Franchise Act on 1 January 2021, the first case law is now starting to appear
A recent court judgment on precontractual disclosure, the mandatory standstill period and the role of precontractual reservations vis-à-vis the potential franchisee, shows that franchisors need to take due care when making such reservations. If not, franchisors run the risk of being unexpectedly contractually bound.
Intellectual Property
Global: IP issues with the use of ‘style names’
From Hermès’ uber-famous “Birkin” and “Kelly”, to Gucci’s “Dionysus” and Mulberry’s “Bayswater”, style names are widely used as a hugely valuable tool that fashion brand-owners deploy to distinguish their different product offerings and styles within a collection.
However, when a particular product style takes off, in some cases achieving cult-like status, the style name for that product alone can be so distinctive that it is capable of distinguishing the product as originating from a particular brand. So, when you hear “Speedy” you think of Louis Vuitton, and when you hear “Antigona” you think Givenchy (and so on). So how can brand owners protect style names, and what are the legal risks involved with using them?
Europe: Champanillo – another sparkling Champagne decision
This is another victory for the Comité Interprofessionnel du Vin de Champagne (CIVC), which is known for vigorously defending the Protected Designation of Origin “Champagne”.
Spanish company GB owns tapas bars in Spain and uses the sign “Champanillo” (which in Spanish means “little champagne”) to designate and promote its establishments on social media and advertising flyers. In the advertising, it uses this sign in association with an image of two champagne glasses containing a sparkling beverage.
The CIVC had previously successfully opposed GB’s registration of the “Champanillo” trade mark in 2011 and 2015. The CIVC initiated proceedings before the Juzgado de lo Mercantil de Barcelona (Commercial Court of Barcelona) seeking to prohibit the use of the term “Champanillo” by GB on the ground that it infringes the PDO “Champagne”. On appeal, the Audiencia Provincial de Barcelona (Provincial Court, Barcelona) requested that the Court of Justice interpret Regulation No 1308/2013 on the protection of products covered by a PDO where the contested term is used in the course of trade to designate not products but services.
News & Events
Webinar: Influencer marketing for luxury brands
25 November, 15.00 GMT
We are delighted to be collaborating with the Luxury Law Alliance to explore trends, tips and opportunities in influencer marketing. Luxury brands are invited to join our panel of experts as they discuss the rise of influencer marketing. This relatively new channel of consumer engagement has revolutionised the marketing landscape whilst attracting significant levels of regulation.
Our panel of experts from Trussardi, Loro Piana and UPR combines the perspective of both brand and agency. They will share practical, best practice tips based on their own experiences, and discuss the importance of building positive relationships with influencers to execute successful marketing campaigns.
Bird & Bird lawyers will also highlight the key risk areas that brands must be aware of when the various legal regulations come into play, to help you structure influencer contracts effectively and navigate this constantly evolving area of opportunity.
Our success in the UK legal directory rankings
We are delighted with our recent rankings in Legal 500 and Chambers UK. As well as group rankings for our Retail, Hotels and Franchising teams, a number of our team-members have received individual rankings in both directories. Thank you to all our clients who provided feedback and helped us achieve these rankings.
We win Deal of the Year at Insider’s Southwest Dealmakers Awards 2021
Our London Corporate, Tax, and Retail teams have won Deal of the Year at Insider’s Southwest Dealmakers Awards 2021. We advised MSA Safety on the acquisition of UK firefighter turnout gear manufacturer Bristol Uniforms. Find more information on the deal here.
