Talking Shop February 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:

• Spotlight on Sustainability
• Advertising & Marketing
• Competition & Consumer Law
• Consumer Protection
• Employment
• Energy
• Intellectual Property
• Payment Services
• News & Events

Spotlight on Sustainability

We have worked with Bird & Bird’s consultancy arm, OXYGY, to develop a Sustainability survey for Retail & Consumer businesses

We began this initiative in response to the increasing importance of sustainability across all parts of the sector. For a large segment of consumers, it is already top of mind. Shareholders and investors are demanding more accountability related to environmental, social and governance aspects of business. Employees want to work for organisations that have a strong sense of purpose and are making a contribution to the environmental and social challenges we face.

Sustainability is now core to the business strategy of industry leaders. Beyond the sustainability function, more and more areas of businesses (such as legal, finance and marketing, to name just a few) are getting involved to shape sustainability strategies and execute them to achieve measurable goals.

The online survey, which takes 12 minutes to complete and can be accessed here, asks respondents to provide their point of view on a range of sustainability-related topics. We would very much appreciate your perspective on this increasingly important topic for the retail and consumer sector. The survey questions the extent to which you have been involved in sustainability-related topics to date. Whether the answer is “not at all” to “very actively” involved, we are eager to hear your point-of-view and learn from your experience.

The survey is anonymous, however, at the end we offer you the opportunity to provide your name if you would like to receive a summary report about this research and/or discuss the topic further. Thank you in advance for your time and input!

Click here to complete the survey. 

Webinar: Green Advertising - current challenges and future outlook

25 March 2021
09:00 - 10:00 GMT; 10:00 - 11:00 CET

Bird & Bird would like to invite you to our international webinar on the Do’s and Dont's of Green Advertising on 25 March. Green advertising - an umbrella term for any advertising, claim or other communication related to sustainability, renewable resources, recycling, so called ocean plastics, carbon footprints or similar - is of ever-increasing importance in today’s world.

Consumers are paying attention to the environment and evaluating the entire lifecycle of the products they are purchasing, from production to disposal. They want to preserve their own health and preserve the planet for future generations. Unsurprisingly, many products are advertised with various green claims in an effort to win the consumer’s favour. However, the use of such claims is highly regulated and a lack of compliance can lead to the removal of non-compliant products from the shelves.

Register here. We hope you are able to join us!

Read more >

Dutch regulator publishes final Guidelines regarding Sustainability Claims

Sustainability plays an increasingly important role for companies and consumers when selling or buying products and services. To promote the development of markets for sustainable products and services, the Dutch Authority for Consumers & Markets (ACM) has drawn up five rules of thumb for sustainability claims used by companies when selling their products and services. The rules of thumb are included in the Guidelines regarding Sustainability Claims which were finalised by the ACM on 28 January 2021.

Read more >

The growing expectation of consumers towards manufacturers in offering environmental-friendly products and the impact of this expectation to commercial practises did not go unnoticed in Hungary. At the end of 2020 the Hungarian Consumer Authority (“HCA”) assessed marketing and commercial practises related to ‘green’ and ‘eco-friendly’ claims and the phenomenon called greenwashing. As a result, the HCA issued a set of guidelines with useful prompts, examples and explanations businesses should consider in order to comply with Hungarian law.

Read more >

Advertising & Marketing

The Australian Communications and Media Authority bites again: online retail giant Kogan receives AUD$310,800 fine for spam breaches

A number of Australian businesses have been caught by the Australian Communications and Media Authority for breach of the Spam Act 2003 (Cth) within the last 18 months, paying over AUD$2,100,000 in infringement notices. In the latest instalment, Kogan Australia, was recently issued with a AUD$310,000 infringement notice and 3 year court enforceable undertakings, for failing to provide a functional unsubscribe facility in its marketing emails.

Competition & Consumer Law

UK Competition and Markets Authority publishes report into algorithms and their harm on consumers and competition law

The impact algorithms continue to have on market dynamics has been under scrutiny by competition authorities around the world in recent years. On 19 January 2021, the CMA published a report, following its investigation into algorithms and their potential harms on competition law. The paper examines how algorithms are used in the commercial world, the ways in which harm can arise and the options open to the CMA to monitor their use. The CMA reviewed algorithms in a broad context, under the term ‘algorithmic system’, meaning an intersection of the algorithms, data, models, processes, objectives, and how people interact and use these systems.

Read more >

Slovak Post again warns of fraudulent emails sent on its behalf

During the valid measures imposed in the fight against the COVID-19 pandemic, and especially the lockdown, still in place throughout the whole territory of the Slovak Republic, fraudsters are abusing the increased demand for delivery services. A practice abusing the inattention of some consumers, recently damaged the brand, logo and identity of Slovak Post’s trusted service, with emails camouflaged as Slovak Post notifications.

Employment

Increasing workplace aggression for retail employees

According to a report released by the National Retail Association, over 88% of Australian retail workers have experienced aggression from customers, and incidents of workplace violence have spiked 400% during the pandemic. Working in an environment with exposure to workplace violence can lead to physical and psychological impacts on workers including anxiety, depression, PTSD and stress related illnesses. Employers have a duty of care, to ensure as far as reasonably practicable, the health and safety of workers, while they are at work, and with the increase of workplace violence in the retail industry, it is helpful to revisit work health and safety obligations.

Read more > 

Energy

Corporate PPAs: an international perspective 2020/2021 edition

Bird & Bird is delighted to launch its revised report on International Corporate Power Purchase Agreements (Corporate PPAs). Large corporations are continuing to set the agenda for the growth of renewable energy across the globe. Despite the COVID-19 pandemic, 2020 was a new record year beating the previous records of 2019. This year’s report comments on some exciting new trends in the market, including baseload/volume firming PPAs, blockchain PPAs as well as regulatory developments such as EU member states’ implementation of the RED II Directive.

Covering over 20 countries across the globe, including new chapters on USA, Portugal, Serbia, Slovakia and Czech Republic, our report gives an invaluable oversight of this exciting market and analyses new innovative structures and emerging trends.

Read more >

Intellectual Property

Acquiring a trade mark portfolio: some practical tips

Whilst there have been a number of unfortunate and high-profile retail casualties as a result of COVID-19, these casualties have created exciting opportunities for other retail and consumer brands looking to expand their brand portfolios. Post-acquisition, a buyer should adopt a brand strategy that complements both the purchaser and, if part of a share sale rather than just a business acquisition, the target. This could mean integrating the brands, allowing the buyer to venture into a new line of consumer products or services, or it could mean developing an independent path for the target in anticipation of a sale.

In this article we outline some of our top tips when it comes to acquiring a brand and its trade mark portfolio.

Read more >

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

As you know, the UK left the EU on 31 January 2020. However, as part of the Brexit process, a transition period was agreed until 31 December 2020 (referred to as “IP Completion Day”), during which time the UK remained subject to EU laws and was treated as part of the EU. This meant that the effects of Brexit weren’t really felt until 1 January 2021.

So, now that Brexit has become effective, what does this mean for your trade mark protection in the UK (and EU)? A brief summary of the main issues is set out in this article.

Payment Services

Unregulated buy now pay later products to be brought within the scope of FCA regulation

On 2 February 2021, former interim chief executive of the Financial Conduct Authority (FCA), Christopher Woolard CBE, published a review on the risks of the currently unregulated buy now pay later (BNPL) products (the Woolard Review). The review, which can be found here, goes into detail of the increased risks associated with the interest free credit products and provides the FCA with multiple recommendations on regulatory changes to manage these risks.

Amongst the detailed report, one of the main recommendations is to urgently amend the current regulatory framework and include BNPL products within the regulatory scope of FCA regulation. The UK government (Government) has already officially published its agreement with the Woolard Review, which can be seen here, confirming that BNPL products should be included within the Financial Services and Markets Act 2000 (FSMA) regime as a matter of urgency. The relevant changes are expected to be added to the currently debated Financial Services Bill in order to implement this change in the legislation.

Read more >

News & Events

Watch our Food & Beverage and Luxury, Fashion & Retail videos!

We have recently launched new videos to showcase two of our Retail & Consumer sub-sectors. Please take a look at the videos on our Food & Beverage and Luxury, Fashion & Retail webpages.  

We launch new e-commpliance toolkit

Your website and e-commerce platforms are key customer engagement tools. They are a means of showcasing your brand and providing customers with a direct route to your products and/or services. Whether your online offering consists of a website that acts as a landing page or extends to a fully realised e-commerce offering, compliance is key.

We have developed an e-commpliance online audit and toolkit, where we review your existing website and/or mobile application in each of your key markets at a fixed cost per country for an overall compliance assessment, before providing a bespoke fixed cost package of legal documents to enable your business to operate online in a legally compliant manner in your dealings with customers. 

Whether you are an established brand looking to refresh your online offering or a start-up wanting to ensure that you enter the market with your best foot forward, we can help. Please do get in touch to find out more.

Retail & Consumer team-members speak at “What’s Next – Beauty in 2021”

In January, partner Graeme Payne and associate James Fowler spoke at “What’s Next – Beauty in 2021”, a virtual beauty industry summit organised by consultancy Indie Beauty Delivers. The summit, hosted over five days, saw 13 speakers offer insights into what 2021 will hold for beauty businesses, and how best to navigate an ever-changing industry.

In their session, Graeme and James explored how beauty brands can protect their businesses from a legal standpoint, and build a roadmap to help achieve their expansion plans. Their discussion touched on brand protection, D2C sales channels and influencer marketing, supply chain resilience, sustainability and ethical procurement, and preparing for investment.

The video, originally published on the event’s Facebook page, can be viewed here.