Talking Shop January 2022
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 January 2022 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. In this edition we are pleased to include a guest article from Tony Wright (Partner, FRP Advisory) on ONS figures in the retail sector. 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:
Special features this month:
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- Advertising & Marketing
- Competition & Consumer Law
- Data Protection
- Dispute Resolution
- Employment
- Intellectual Property
- Tech
- News & Events
Market Spotlight: Italy
New Italian legislation implementing Directive (EU) 2019/633 on unfair business-to-business trading practices in the agricultural and food supply chain
The legislative decree no. 198/2021 (“UTP Decree”) transposing in Italy Directive (EU) 2019/633 on unfair business-to-business trading practices in the agricultural and food supply chain (the “UTP Directive”), finally entered into force on 15 December 2021, repealing the previous legislation under Article 62 of the Italian Decree-Law no. 1/2012.
The UTP Decree applies to B2B relationships involving supplies of agricultural and food products by suppliers established in Italy, irrespectively of the turnover of the suppliers and buyers.
New environmental labelling: Implementation requirement extended until 1 July 2022
Italian Legislative Decree No. 116 of 3 September 2020 ("D.Lgs. 116/2020"), implementing (EU) Directive 2018/851 on waste and EU Directive 2018/852 on packaging and packaging waste, amended inter alia Article 219, para 5, of the Italian Legislative Decree No. 152 of 3 April 2006 (the "Italian Environmental Code"), which provides for certain environmental labelling requirements and obligations for packaging. New eco-labeling requirements will be mandatory from 1 July 2022.
The Italian Decree Law No. 228 of 30 December 2021 ("DL 228/2021") extended the period of suspension of the obligation of environmental labelling (initially until 31 December 2021) to 30 June 2022, with the possibility for companies to sell products without the new environmental labelling requirements while stocks last, provided they have already been put on the market or labelled as of 1 July 2022. Consequently, packaging - even if empty - which has been labelled (i.e. already printed, or for which a label has already been produced/applied) before 1 July 2022, or packaging which has been purchased by the packaging users from their suppliers before the same deadline, may continue to be marketed.
Market Spotlight: UAE
Key updates from the UAE that all Retail & Consumer businesses need to know in 2022
Businesses with operations in the UAE need to be aware of a number of changes taking place in 2022. In this article, we look at updates to patents, designs and copyright law, the switch to a Monday-Friday working week, and the implementation of the Madrid Protocol.
Guest Article: FRP Advisory
Grim reading for retailers from the ONS
Many thanks to Tony Wright, Partner at FRP Advisory, for contributing this article.
The ONS figures are showing retail suffering its worst December slump since records began (in 1996). The 3.7% month-on-month decline was definitely exacerbated by a stronger than expected November (when shoppers were clearly intent on early Christmas shopping), but even without this mitigation it was devastatingly worse than the 0.6% drop which was the consensus estimate. Indeed, this represents the biggest fall since January 2021, when were put into a much tougher new lockdown. So with Plan B now being brushed aside, and the government telling us we are all going to have to “learn to live with Covid”, should we expect a swift reversion to the norm?
Advertising & Marketing
Germany: The use of influencers in social media – the latest “hat trick” of the BGH
For the first time, the German Federal Court of Justice (Bundesgerichtshof, BGH) has issued a "decision hat trick" (case I ZR 90/20; case I ZR 125/20; case I/ZR 126/20) regarding influencer marketing - especially in connection with the use of so-called tap tags. In particular, the decisions dealt with the question of whether influencers had violated the requirement to label their social media posts as advertisements.
UK: Influencer marketing - the regulator is watching
Influencer marketing is a popular medium for brands to interact and engage with their audiences in meaningful ways. It allows brands to partner with influencers who align with their image and core values. Influencers can then raise a brand’s profile through multiple avenues, such as social media, event attendance, podcasts, blogs, content creation and more.
However, the UK’s advertising regulator (the Advertising Standard’s Authority (“ASA”)) and the Competition and Markets Authority (the “CMA”) has paid keen attention to influencer marketing over 2021 and 2022. In fact, the ASA monitored certain influencers over a three-month period and published a report in March 2021 concerning the issue of influencers failing to properly disclose their advertising content. The ASA also broadcasts a public list of influencers who regularly breach the Code of Non-broadcast Advertising and Direct & Promotional Marketing. This can create brand reputational issues as the combination of well-known brands and celebrities often catches the media’s attention. In light of this, we discuss some common issues in influencer marketing below, including some ASA recommendations.
UK: Upcoming changes to the advertising of HFSS products
On 2 December 2021, the Food (Promotion and Placement) (England) Regulations 2021 were enacted and it has now been confirmed that they are coming into force in England and Wales from 1 October 2022. Following the Government’s consultation on the rules and as part of the Government’s strategy to tackle obesity, the HFSS Regulations will impose restrictions on the price and location of products in certain stores that are high in fat, sugar and salt (“HFSS products”).
Competition & Consumer Law
UK: The CMA Consults on its Annual Plan for 2022/23
In December the CMA issued its proposed Annual Plan for 2022/23. Overall, the CMA has sent a strong signal that it wishes to underline its role at the forefront of global competition and consumer law enforcement. In this article, we highlight four key points for businesses to note.
UK: CMA to review Green Claims in the fashion retail sector
Following the launch of the Green Claims Code in Autumn 2021 (see our article and listen to our podcast), the CMA is launching its first sector review, which will determine whether fashion businesses in the UK comply with consumer protection law, including the latest guidance on environmental claims on goods and services (see here). The CMA had forewarned that ‘textiles and fashion’ could be amongst the first to be studied.
Data Protection
China: Compliance guide on personal information protection for SMEs
The PRC Personal Information Protection Law came into effect on 1 November 2021. It is the first piece of comprehensive and dedicated personal information protection law in China, representing a milestone in the development of China’s personal information protection regime. The law imposes high compliance requirements on processors of personal information in all aspects of their processing activities. Small and medium enterprises, when processing personal information of their employees, customers, suppliers, users and other individuals, should take PIPL compliance seriously. Therefore, we have prepared this self-checklist for Personal Information Protection Compliance, which is tailor-made to SMEs.
China: Data protection and cybersecurity - annual review of 2021 and outlook for 2022
The year 2021 proved to be a milestone for data protection and cybersecurity in China. Most notably, the Personal Information Protection Law (“PIPL”) and the Data Security Law (“DSL”) came into force in September and November respectively. The PIPL, the DSL and the Cyber Security Law (“CSL”) together represent the “troika” of the Chinese data protection and cybersecurity regulatory framework. Beyond the troika, implementing rules have sprung up, and the gloves are coming off in enforcement. As we are heading into 2022, what are the new challenges for businesses? Let’s take a closer look at these developments and what we can expect from them in the year 2022.
Dispute Resolution
UK Supreme Court provides further guidance on determining the governing law of an arbitration agreement in upholding a summary judgment not to enforce an arbitral award against a non-party
In the recent decision of Kabab-Ji SAL (Lebanon) v Kout Food Group (Kuwait) [2021] UKSC 48, the Court confirmed, following its decision last year in Enka v Chubb [2020] USKC 38, that where a choice of law is made to govern the main contract, and no choice is made for the arbitration agreement, it will be governed by the law of the main contract. In the judgment, the Court provided further guidance on this approach, and the use of summary judgment on enforcement applications, in the context of one party’s attempt to enforce a Paris seated arbitration award arising from a franchise agreement for restaurants in the Middle East.
Employment
Global: Business protection in a COVID-impacted world
Employers worldwide are experiencing a period of profound change. The COVID pandemic has significantly accelerated the advancement of digital technology and flexible working practices within organisations. The modern workplace is moving away from the traditional “nine to five” office commuter model towards hybrid systems, whether part-home, part-office, or full-time remote working. This working revolution raises various HR, legal and compliance issues for international employers. One key challenge is how best to protect your trade secrets and confidential information in an increasingly connected and knowledge-based global economy and changing workplace environment.
Organisations are better placed if they take proactive steps to protect their business’ trade secrets, guard against employee breach and avoid disputes where possible. Protecting business in this way has always been high on the agenda of HR, legal and compliance teams, but is receiving renewed focus in the pandemic period. This article will look at the changing workplace environment, key areas of protection and practical steps for employers to guard their key business interests.
UK: Re-focusing our gaze - the HR agenda for 2022
The converging crises of a global pandemic and a climate emergency, coupled with the United Kingdom’s long-awaited exit from the European Union, gave rise to a multitude of new challenges for employers in 2020 and 2021. In parallel, in some sectors employees have become more outspoken with activism on the rise, and the Environmental, Social, and Governance agenda (including diversity, equity and inclusion, and sustainability concerns) shot up the boardroom agenda as the #MeToo and Black Lives Matter movements gained traction in popular culture and COP26 and the climate emergency dominated headlines. It has been a time of great upheaval, change and opportunity for businesses, Human Resources and legal professionals alike.
Intellectual Property
LIDL wins battle to Vorwerk: Monsieur Cuisine does not infringe Thermomix patent
Vorwerk & Co. Interholding GmbH, manufacturer of the cooking machine “Thermomix”, on June 14 2019, filed a lawsuit against Lidl Supermercados S.A., bringing a patent infringement action in relation to the patent EP 1 269 898 - ES 2 301 589 (ES '589) protecting technology consisting of a "cooking machine", alleging that the offering and marketing in Spain of a cooking robot under the trademark “Silvercrest” and identified as “Monsieur Cuisine Connect”, a competitor of Vorwerk's Thermomix cooking machine, infringes its patent.
Europe: Non-conventional marks – a significant departure in lipstick design
3D marks, position marks, pattern marks – what do these non-conventional types of trade marks have in common? They are notoriously difficult to register. European trade mark authorities have been quite unfriendly towards them in recent years, rejecting tech-related 3D marks such as the Logitech microphone shape (EUIPO Board of Appeal case R 2630/2019-4), as well as fashion-related applications like the Birkenstock sole pattern (ECJ case C 26/17 P) and the Buffalo plateau sole position mark (EUIPO Board of Appeal case R 2167/2019 1), just to name a few.
Across the pond, the shoe and clothing manufacturer Timberland has been in the news recently for struggling to register the shape of its iconic yellow boot which originated in the 1970s. While US trade mark law usually rejects these applications based on the concept of “functionality”, which means the feature is considered essential to the use or purpose of the article, the concept determining protectability in EU law is framed slightly differently: Distinctiveness of these types of marks is only affirmed when they depart significantly from the shapes and patterns usually found in the relevant market sector.
Europe: A marked challenge - why Cyprus failed in its latest Halloumi battle
The EU General Court issued three judgments on December 8 2021, all of which concerned two trademark applications made by the Swiss company Fontana Food, which had applied for EU trademark protection for ‘Grilloumi’ (EU 015963291) and ‘Grilloumi Burger’ (EU 015963283) in October 2016 (T-556/19, T-593/19 and T-595/19).
These trademarks are a play on words on Halloumi, a type of cheese often associated with the island of Cyprus where it has been produced for many centuries. It was no surprise that the Republic of Cyprus, relying on two Cypriot certification word marks ‘XAΛΛOYMI Halloumi’ and the Foundation, the owner of the EU collective trademark ‘Halloumi’ (EU 1082965) protected for cheese in class 29, both opposed the trademark applications for ‘Grilloumi’ and ‘Grilloumi Burger’. The opposition division and the board of appeal of the EU Intellectual Property Office (EUIPO) both rejected the oppositions, which led to the judgments of the EU General Court relating to the IP safeguarding Halloumi cheese. The judgments shows the limitations of relying on arguments based on collective marks.
Australia: Burgers, beers and wicked desserts – lessons for brand owners from the Australian food & beverage sector
It turns out that 2021 was the year for the Australian food & beverage sector to take trade mark cases to the Full Federal Court. In this article, we review three of these cases and highlight learnings not only for businesses operating in this highly competitive, fast-moving sector, but lessons relevant to brand owners more broadly.
Tech
Global: Tech challenges, opportunities and predictions for 2022
We have once again asked our global team of Tech & Comms specialists to highlight some of the challenges and opportunities they expect to see in the year ahead. Covering the many aspects of technology, we have grouped these predictions in four categories: data, regulation, smart infrastructure and new tech. There are strong connections between these four groups, with new tech generating vast amounts of data, leading to new regulatory frameworks and requiring significant investment in new infrastructures.
News & Events
We launch Employment Law Zone app 2.0
The Employment Law Zone is a one-stop source of essential employment law information in the 19 countries around the globe where Bird & Bird offers employment law advice. It is useful for HR-professionals and in-house legal counsel who often need to understand the legal landscape in many countries and sets out to create an quick reference guide, which is easily accessible anywhere from your mobile phone. The app is available online and to download on both Apple and Android.
Webinar: The European Commission updates its distribution regime – what’s new for companies in Italy?
27 January 2022
The European Commission recently published its updated Vertical Block Exemption Regulation and the accompanying Guidelines, aimed at replacing the current legislation which has been in force for over 10 years.
In this webinar (held in Italian), we will explore the most important changes that companies need to know in order to continue pursuing their commercial objectives in accordance with the new regime.
Federico Marini Balestra and Lucia Antonazzi (Bird & Bird) will discuss the topic with Claudio Calcagno (Director of GMT Economics), looking at the legal and economic changes, challenges and opportunities that will arise.
Save the date: Myne London inaugural charity ball
19 March 2022
The Hurlingham Club, London
We’re looking forward to attending the Myne London Foundation inaugural charity ball, hosted by our client, Myne London. Presented by Jenny Powell, the evening will include a champagne reception and three course dinner, as well as live music from Holysseus Fly, James Vine and friends, with guest appearance by The Voice‘s Hannah Williams. A charity raffle and auction will be hosted by Sotheby's, all for a very worthy cause.
The Myne London Foundation is a charitable initiative designed to assist those who need access to education. All proceeds from their first charity ball will support education for girls in Pakistan, and other marginalised or disadvantaged children.
Myne London was founded in 2018 to source emeralds ethically, sustainably and responsibly from Swat Valley, Pakistan. The business trains and employs a 75% female workforce, supplying designer brands and customers with traceable emeralds.
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