Talking Shop November 2020

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:

• Competition & Consumer Law
• COVID-19
• Employment & Immigration
• Franchising
• Intellectual Property
• News & Events

Competition & Consumer Law

Hungary: GVH launches sector inquiry regarding supply of beverages in the HoReCa sector

The Hungarian Competition Authority (GVH) launched a sector inquiry in October 2020 in order to analyse the procurement of beverages in the HoReCa sector (hotels, restaurants and cafés). The GVH suspects that Hungarian HoReCa outlets are reluctant to establish new supply relationships because of exclusivity arrangements with suppliers of beverages, and that this trend has resulted in restricted and narrower supply and higher prices for consumers.

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Sweden: New judgement regarding the Swedish alcohol monopoly

The Swedish Patent and Market Court has recently issued a judgement concerning Systembolaget’s alcohol retail monopoly. The background to the case is that the Swedish Alcohol Act (2010:1622) only allows the state monopoly, Systembolaget, to conduct retail sales of alcoholic beverages. However, in recent years, several other players have started selling alcohol, primarily wine, to Swedish consumers via e-commerce solutions.

This has been heavily criticized by Systembolaget, and has resulted in several legal proceedings. One such case has now been decided by the Patent and Market Court as the first instance. The company in question sells wine via a website that has been marketed to Swedish consumers. Consumers place orders on the website, and the products are transported to the consumer’s home with a carrier hired by the company.

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Sweden: Updates to Swedish consumer legislation

The Swedish government has recently presented an inquiry proposing that the current Consumer Sales Act (1990:932) be replaced by a new act – the Act on Consumer Protection in Sales and Certain Other Contracts. Through the new act, the Government intends to implement recent EU-directives in the area of consumer law, namely the Sale of Goods Directive (2019/771) and the Digital Content Directive (2019/770).

At the moment the inquiry is out for public consultation, after which we expect the Government to publish a legislative proposal. According to the inquiry, the new act is proposed to enter into force on 1 January 2022.

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UK: CMA turns its attention to platforms to combat hidden influencer marketing

Following an investigation into hidden advertising, the UK Competition and Markets Authority has obtained several voluntary undertakings from Instagram to address user compliance with consumer and advertising regulations.

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UK: CMA investigates misleading environmental claims

In recent years, sustainability credentials have moved from being ‘nice to have’ to an imperative for businesses in the UK, and across the EU. This has led to a wide array of sustainability claims ranging from a genuine ethos behind supply chains to downright misleading advertising. The CMA’s consumer protection arm announced that it will be carrying out a market investigation into how products and services claiming to be 'eco-friendly' are being marketed, and whether consumers are being misled. The CMA’s ultimate aim is to provide guidance for businesses and possibly inform an update of UK consumer protection law.

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COVID-19

Singapore: Government plans to launch realignment programme for small businesses impacted by COVID-19

The Singapore Government is planning to launch a “realignment framework” to enable small and micro enterprises significantly impacted by COVID-19 to disclaim agreements that they have entered into. This framework is provided for in the COVID-19 (Temporary Measures) (Amendment No. 3) Bill (the “Bill”) tabled in Parliament on 2 November 2020.

The Singaporean government has said in a press release that “The framework will provide a quick and fair way for businesses to realign and move forward by allowing selected contracts to be renegotiated and to come to a mutual agreement. If they are unable to agree, the contract may be terminated. Businesses will remain liable for outstanding obligations but will not need to pay early termination penalties.” Given the damage that COVID-19 has done to retail and consumer businesses, it is likely to have a significant impact on the sector.

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UK: High Court rules in favour of insurer on physical damage in COVID-19 business interruption insurance claim

The recent High Court judgment in TKC London Limited v Allianz Insurance plc [2020] EWHC 2710 (Comm) suggests that policyholders will find it difficult to make successful claims for COVID-19 losses where their insurance policies provide business interruption (‘BI’) cover for physical damage only
In this case, the claimant operates a café restaurant in Kensington, London. Between 21 March and 4 July 2020, it was forced to close as a result of the lockdown restrictions imposed by the Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 (the ‘Regulations’). The defendant insured the claimant under a policy that included a ‘Business Interruption All Risks Estimated Revenue’ section (the ‘BI Section’). The policy largely represents the defendant’s standard ‘All Risks’ policy wording.

The claimant argued that the closure of its business as a result of the Regulations fell within the BI Section of its policy. The defendant denied this and sought summary judgment to strike out the claim. The court found in the defendant’s favour and ordered summary judgment. In doing so, it found that the enforced closure and temporary loss of use of the claimant’s property did not amount to ‘loss of property’ under the policy.

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Employment & Immigration

Australia: How do you calculate an employee's personal leave entitlement?

In August the High Court of Australia delivered a landmark decision on employee leave entitlements in Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Known as the Australian Manufacturing Workers Union (AMWU) [2020] HCA 29. The decision clarified how employers must calculate employees' entitlements to 10 days' paid personal/carer's leave under the Fair Work Act 2009 (Cth) ("Fair Work Act").

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UK: The new UK Immigration Rules - a Home Office tale

2020 has been a tumultuous year in every sense, and this has been, and continues to be, the case in the immigration world. The end of the Brexit transition period is fast approaching, COVID-19 has had a crippling effect on Home Office systems and migrants’ ability to apply for, and preserve, their right to live and work in the UK, and now we have a suite of new Immigration Rules.

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Franchising

Australia: Proposed changes to the Franchising Code - what do franchisors need to know?

With the Australian Government having outlined its proposed changes to the Franchising Code, now is the time to make submissions on the draft and to prepare for the new legislation. In this video, Melissa Murray asks Lynne Lewis what franchisors need to know.

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Intellectual Property

Australia: High Court introduces patent exhaustion doctrine into Australian law, awarding a victory to remanufacturers

In the long running patent infringement battle between OEM cartridge supplier Seiko Epson, and the remanufacturer of its cartridges, Calidad, on 12 November the High Court delivered its judgment, imposing a significant limitation on patentee’s rights. In its decision, Calidad Pty Ltd v Seiko Epson Corporation [2020] HCA 41, the High Court has enshrined the doctrine of patent exhaustion in Australian law, thereby limiting the patentee’s (Seiko Epson) ability to restrict the post market remanufacturing of its cartridges.

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Singapore: Rolex on watch to sink Franck Muller's "MARINER" trade mark

Although Rolex was unable to establish that its “SUBMARINER” trade mark was well known in Singapore, it was able to rely on its registration from 1959 to prevent Franck Muller’s “MARINER” mark from sailing through to registration. Relying on a trade mark first registered more than 60 years earlier, this case highlights the importance of adopting a diligent and vigilant renewal stance towards managing trade mark portfolios.

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News & Events

Join us at the Luxury Law Summit Americas

We are delighted to be sponsoring the virtual event on 3 December! We are also looking forward to our panel session, where partners Roelien van Neck, Ian Edwards and Martin von Haller Grønbæk will be discussing the future of tech in the luxury sector, with a debate around whether brands should be focusing on blockchain, AI or cloud to enhance their business in a post-pandemic world.

We hope you can join our panel session, which will take place at 16.30 EST, and will be available for all Summit delegates to view on demand after the event.
Our speakers and other Bird & Bird luxury experts will be available to chat during the event intermissions and immediately after our session in our virtual meeting room – we hope to see you there!

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Watch our webinar on influencer marketing

Influencer marketing has revolutionised the marketing and advertising landscape. However with this relatively new and evolving channel of consumer engagement comes new risk areas. Influencer marketing has attracted increased levels of regulation, resulting in legal and commercial challenges to those involved.

Understanding consumer law and local advertising regulation is critical to running a successful influencer marketing campaign. As both regular advisers in this area and thought leaders around the issues that are on the horizon, we were delighted to share our experience and advice during a multi-jurisdictional webinar for brands, agencies and influencers.

If you missed it, please get in touch for the on-demand webinar recording.

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We discuss hotel insolvency with a panel of industry experts

We were delighted to see over 400 participants at our recent webinar, which we hosted alongside EP Magazine, HVS and AlixPartners. We were joined by hotel sector experts to discuss the key issues surrounding hotel insolvency. This included a panel discussion with senior leaders within hotel finance and corporate real estate, who shared their views on the ways in which hotel businesses could structure their thoughts and actions to minimise the potential pain and maximise the potential opportunities an insolvency could bring.

If you missed it or would like to recap, you can watch a recording of the session here.

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