Talking Shop November 2019

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 also find details of our upcoming events and recent news, 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.

• Consumer Law
• Intellectual Property
• Regulatory
• Social Media
• News & Events

Consumer Law

'Tis the season for giving: new rules for gift cards in Australia

With the festive season upon us it is important for retailers to be aware of new laws in Australia relating to gift cards. All gift cards supplied to consumers in Australia from 1 November 2019:

(a) must have a minimum three year expiry period

(b) must prominently display information regarding the expiry of the gift card on the card itself

(c) must not impose certain post-supply fees.

The new laws also make void certain terms and conditions that have previously been used by suppliers of gift cards.

Everyone loves a discount, but beware of was/now pricing

The Australian Competition and Consumer Commission (ACCC) has issued four furniture retailers with infringement notices following an investigation into their use of discount price representations in advertising. Plush Sofas, Koala Living, Early Settler and Oz Design each paid $12,600 after the ACCC alleged that each had used was/now pricing or advertised savings that were not genuine savings for customers.

These infringement notices follow the Federal Court proceedings brought by the ACCC against online retailer Kogan following its advertisement of a 10% saving on products at its end of financial year sale in 2018. It is alleged that Kogan inflated prices on more than 600 products immediately before the promotion, some by more than 10%. This matter is before the courts, with the next hearing scheduled for March 2020.

Harnessing the power of your beauty brand: tips for safeguarding your IP

Behind every successful brand, there is a robust and comprehensive brand protection strategy. Whether you’re taking your first steps into business or you’re an established beauty brand with plans to expand internationally or diversify your offering, securing the relevant IP (Intellectual Property) rights adds value to your business and should be seen as a long-term investment for future growth.

Read more >

Claridge's extinguishes candle maker's use of CLARIDGE in trade mark and passing off action

Despite the fact that Claridge's hadn't put their registrations for the mark CLARIDGE'S to genuine use in the UK for candles, Claridge's were ultimately successful in proving that a candle maker's use of the mark CLARIDGE on and in relation to candles was trade mark infringement and passing off. In particular, the Court found that the CLARIDGE'S mark conveyed an image of luxury, glamour, elegance, and exclusivity which the candle maker had sought to take unfair advantage of.

For further details of this case, please see page 8 of our Reports of Trade Mark Cases for CIPA Journal.

Myanmar new trade mark laws: soft opening of online filing system

Further to our update earlier this year, a tentative date has been set for the soft opening launch of the new online filing system. Slated to commence in or around the second half of December 2019 to January 2020, existing mark holders who have recorded their marks under the current system will be required to re-file their marks under the new system. In the absence of undertaking this step to re-file their existing marks, mark holders will lose out on an early filing date and will only be able to file new applications under the new filing system after the grand opening, estimated to commence around Q2 2020.

Real more >

Online infringement of EUTM based on targeting

The European Court of Justice (ECJ) has ruled that a defendant who infringes an EU trade mark (EUTM) by advertising or offering counterfeit goods for sale online may be sued in the country targeted by the website.

While the ECJ has ruled on matters of international jurisdiction relating to online infringements of national trade marks and offline infringements of EUTMs, this is the first time that the court has ruled on international jurisdiction in an online EUTM infringement case.

Regulatory developments on e-cigarettes in the UAE

The Emirates Authority for Standardization and Metrology (ESMA) issued a new set of standards, which came into effect from mid-April 2019, legalising the sale and use of electronic smoking devices. Manufacturers, wholesalers and retailers are now allowed to import and sell e-cigarettes, electronic pipes, electronic shisha devices and e-liquid refills. The new standards are aligned with the best international practices and had been based on the World Health Organisation's (WHO) framework convention on tobacco control.

Walking the tightrope between food and consumer goods and therapeutic goods

Advertisers of food and consumer goods need to pay careful attention to the nature of the claims they make in advertising in order not to cross the line rendering their product a therapeutic good.

The Australian Therapeutic Goods Administration (TGA) has released its first annual advertising compliance report since becoming the sole therapeutic goods complaints handling body in July 2018. The report provides insight into the state of advertising compliance and the TGA's strategy to address breaches. A key message from that report is that retailers advertising food and consumer products lack understanding of therapeutic goods regulation in Australia and are exposing themselves to sanctions.

What a future without social media 'likes' could mean for influencer marketing

From Facebook’s ‘thumbs up’ to Reddit’s ‘upvote’ and Instagram’s and Tik-Tok’s ‘likes’, so-called ‘vanity metrics’ in social media are ubiquitous, and ‘double-tapping’ has become so addictive that for many it is a biological reflex. ‘Likes’ have become a form of currency: often used as a measure of success of the popularity of a post and the engagement of followers, and as such are highly valuable for influencers getting paid for content in posts.

As Instagram announces that it is considering removing the platform's public 'like' counts, we consider the impact of a future without visual metrics. 

Danish influencers in trouble with Danish Marketing Practices Act

The Danish Consumer Ombudsman (DCO) recently finalized a review of Danish influencers and their sponsored content.

We report on the results of the investigations and the Danish guidance available to influencers and businesses who want to #doitright.

News & Events

Welltodo releases 2020 Consumer Wellness Trends Report

Wellness is a booming global industry, with an annual turnover of $4.5 trillion. Our Wellness team works closely with Welltodo – a leading global resource and consultancy that helps people to build incredible businesses and careers in the wellness industry through its content, events, recruitment and coaching services, and more. We partner with Welltodo on the Welltodo Founder Series - a leading event series in London for forward-thinking brands, start-ups, influencers and investors in the wellness industry – and are also title sponsor of the annual Welltodo Summit, which attracts over 250 dynamic businesses operating in this space.

Welltodo's recently released Consumer Wellness Trends Report dives into consumer brands that are leveraging eight key trends; rejecting one-dimensional approaches to wellness to deliver new sub-categories and disruptive concepts.

Access your copy of Welltodo's 2020 Consumer Wellness Trends Report here, and claim your 10% discount with the code 2WELLBIRDS.

Our guests commented on the "refreshingly different" programme, which focused on how a wide variety of matters such as F&B, dark kitchens, wellness and sustainability are impacting on hotels, as well as providing insights into hotel performance, investment and supply trends. An industry veteran remarked that the event taught them there was still "plenty more to learn" about an industry they thought they knew everything about.

The agenda also included discussions on the impact of Brexit, the future of wellness, how hotels should be better at catering for guests with disabilities, and the increasing importance of customer service and experience.

You can watch the event video to find out more.