Talking Shop October 2022

In this edition we explore updates from the Australian Competition and Consumer Commission, the European Commission’s proposal for a new European Cyber Resilience Act aimed at digital products, a recent case in Italy regarding the (in)validity of a shape trade mark consisting of two-chamber yogurt tubs, and much more.

Please get in touch or visit our webpage for more information about Bird & Bird's Retail & Consumer Group.

In this newsletter: 

• Competition & Consumer Law
• Data & Cybersecurity
• Intellectual Property
• Payment Services
• Regulatory
• Tax
• News & Events

Competition & Consumer Law

Australia: Competition and Consumer Commission Chair outlines key priorities for the year ahead

On 9 September 2022, the ACCC Chair Gina Cass-Gottlieb delivered the opening address of the Law Council Competition and Consumer Law Workshop, and focused on two broad themes - the regulator’s current position on enforcement and merger work, and the ACCC’s key priorities for the year ahead. This article discusses one of those priorities – sustainability – as well as some of the Chair’s observations around mergers and enforcement.

Read the full article here

Australia: Developments in the Unfair Contract Terms Regime

On 28 September 2022, the Australian government introduced the Treasury Laws Amendment (More Competition, Better Prices) Bill 2022 (Cth) into Parliament. This Bill introduces a new penalties regime for using and relying on unfair contract terms and extends the coverage of the unfair contract terms regime in Australia. It also proposes to widen the definition of ‘small businesses’ to include entities with up to 100 employees or less than $10 million annual turnover.

Read the full article here

Data & Cybersecurity

Europe: Commission unveils 'security by design' rules for digital products

With the aim of creating the first EU-wide legislation of its kind, the European Commission recently presented a proposal for a new European Cyber Resilience Act. The Act introduces horizontal mandatory cybersecurity requirements for products with digital elements which are not specific to sectors, throughout their whole lifecycle. The proposal is complementary to the requirements under the proposal for a NIS2 directive which aims at ensuring a high level of cybersecurity of services provided by essential and important entities.

Read the full article here 

Germany: Double-hat DPOs - Berlin Data Protection Authority fines an e-commerce platform for breaching DPO conflict of interest requirements

On 20 September 2022, the Berlin Data Protection Authority announced that it imposed a fine of EUR 525,000 on the subsidiary of a Berlin-based e-commerce group due to a conflict of interests arising from the company's data protection officer. In this matter, the DPO was also acting as the managing director of the two service companies that processed personal data on behalf of the e-commerce group. Consequently, the Berlin DPA considered that the DPO was in charge of monitoring processing activities that he himself contributed to defining as a managing director of two entities of the same group.

Read the full article here 

Intellectual Property

Italy: Shape trade marks - when mixing yogurt with toppings becomes a legal issue

The Court of Milan has recently heard an interesting case regarding the (in)validity of a shape trade mark consisting of two-chamber yogurt tubs. Müller sought preliminary measures before the Court of Milan against the company Latteria Nom S.r.l., aimed at obtaining an injunction from manufacturing and marketing, as well as the subsequent withdrawal from the market of the “Milk Yogurt Mix” with the same shape and size as its registered shape trade mark. The Judge addressed the topic of the functional shape of the two-chambered tub.

Read the full article here

Europe: Dior Saddle bag's shape not a trade mark says EUIPO

In the world of the trade mark very few shape marks seem to make the cut and proceed to registration. Dior’s Saddle bag is an example of another one that so far has not succeeded. We look at what the EUIPO Board of Appeal recently had to say about it.

Read the full article here

Europe: These shoes are made for walking - CJEU clarifies platform operators' trade mark infringement liability

In the world of the trade mark very few shape marks seem to make the cut and proceed to registration. Dior’s Saddle bag is an example of another one that so far has not succeeded. We look at what the EUIPO Board of Appeal recently had to say about it.

Read the full article here 

Payment Services

UK: PSR issues final decision for main acquirers in UK relating to provision of information to merchant customers

On 6 October 2022, the Payment Systems Regulator published its final decision on measures to improve card services for businesses by imposing specific information disclosure requirements on certain card acquirers in the UK. The final remedies have been directed to 14 acquirers carrying on acquiring services in the UK, as listed on p. 75 of the PSR’s final decision. The PSR has the power to amend this list, so the decision could be applicable to other acquirers in the future.

Read the full article here

Regulatory

Europe: Final negotiations begin on new rules to keep unsafe products out of Single Market

While the adoption of the Digital Services package has grabbed most of the recent headlines, the EU institutions have also made significant progress on a new set of rules to ensure that only safe products are available in the Single Market both online and in traditional stores. The European Parliament and the Council of the EU adopted in June and July, respectively, their positions on the General Product Safety Regulation. This meant that the “trilogue” negotiations between the Commission, Parliament and Council could begin with a first meeting on 15 September. Two further meetings are scheduled for November so that the co-legislators can continue their work to reach a final compromise text.

Read the full article here 

Tax

UK: Update on new reporting rules for online platforms

Last month we reported on the OECD’s Model Reporting Rules for Digital Platforms, and the key takeaways from the government’s consultation outcome on the implementation of these rules. HMRC have now published draft regulations (18 October) incorporating the OECD’s Model Reporting Rules for Digital Platforms, which will be of interest to digital platforms which facilitate the provision of various services such as taxi and private hire services, food delivery services and freelance work, as well as sales of goods or the rental of property or transport.

Read the full article here 

News & Events

Webinar: The Metaverse - potential, pitfalls and politics

29 November, 9.00 GMT

The Metaverse is presenting a range of opportunities and challenges to businesses operating in many different sectors. Whether you're a fashion brand looking to reach a new audience via a gaming partnership, or a multi-national tech company navigating the world of virtual working, it is becoming a major area of focus for organisations engaging with a more immersive, integrated online world.

On 29 November we’re bringing together a range of Bird & Bird experts and industry figures to explore what the Metaverse has to offer and the challenges and opportunities that arise when launching or engaging with a Metaverse project. This is a global event aimed at legal and industry professionals, so if you're interested in the Metaverse and digitalisation, please join us.

Find out more and RSVP here