Talking Shop April 2023

In this edition you can find a spotlight on a recent English Court of Appeal decision relating to the question of exclusivity; an update on the Hungarian Competition Authority's new price monitoring tool proposal; a summary of the EU's plans to extend the scope of contract types for which a new e-commerce "withdrawal button" will be mandatory; an exploration of Australia's approach to employees working on public holidays, and much more.

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

In this newsletter: 

• Spotlight: Case Update
• Advertising
• Competition
• Consumer Law
• Employment
• Franchising
• Intellectual Property
• News & Events

Spotlight: Case Update

UK: When you think you’re exclusive but you’re not - Court of Appeal examines exclusivity in the Retail & Consumer sector

Although oral agreements can be enforceable under English law, a recent decision of the English Court of Appeal serves as a reminder of the importance of having written agreements between the parties. The judgment is particularly interesting for those in the Retail & Consumer sector as the decision relates directly to the question of exclusivity between a drinks manufacturer and a wholesaler.

Read the full article here 

Advertising

UK: Ofcom moves to restrict the advertising of unhealthy foods

In compliance with the UK Government’s crackdown on obesity, Ofcom acts to implement the new restrictions on advertising and sponsorship for less healthy food and drinks. With these new restrictions coming into force from 1 October 2025; rights holders, advertisers, sponsors, and broadcasters ought to reconsider how to best approach their sponsorship and advertising programmes.

Read the full article here

UK: Marketing or medicine? Health claims in advertising

The ASA’s recent ruling on Willy's serves as a good reminder that making health claims on products is highly regulated and is subject to strict requirements. In addition to complying with the rules set out in the CAP Code and other applicable legislation, only health and nutrition claims authorised on the Great Britain Nutrition and Health Claims Register are permitted.

Read the full article here

Competition

Belgium: Competition Authority clears sustainability initiative for living wages in the bananas sectors

In December 2022, IDH Sustainable Trade reported that five Belgian retailers had signed a commitment to ensure a living wage for banana workers throughout their international supply chains by 2027. The project covers fresh bananas sold on the Belgian market either as branded or private label products. In a press release of 30 March 2023, the Belgian Competition Authority announced that it had reviewed the initiative and found no competition law concerns.

Read the full article here

Hungary: Competition Authority proposes a new price monitoring tool

The Hungarian Competition Authority ("GVH") has announced its proposal for the Hungarian Government to create a new online price monitoring database, which the Hungarian Government has supported. This initiative aims to explore the potential competition law concerns of the growing food price inflation and address the findings of the recent accelerated sector inquiries and investigations into the food sector concluded by the GVH.

Read the full article here

Consumer Law

Australia: Time to prepare! Ensuring compliance with the revised Unfair Contract Terms Regime in Australia

Any business in the retail industry, including manufacturers, wholesalers and retailers, that enters into standard form consumer and small business contracts with customers in Australia is on notice to ensure that by 9 November 2023, their standard form contracts are in compliance with the requirements of the new unfair contract terms regime in Australia. As of 10 November 2023, significant pecuniary penalties will apply in relation to the use of unfair contract terms in standard form contracts entered into with Australian customers.

Read the full article here 

UK: Taking the pressure off - the CMA has released its position on the use of countdown timers, discount claims and other pressure-selling tactics

On 29 March 2023, the UK’s Competition and Market’s Authority ("CMA") published a letter to UK businesses which outlines various pressure selling tactics which the CMA considers would likely breach consumer protection laws. If your business uses, and is considering using, any forms of pressure-selling to induce consumers to transact, then read on.

Read the full article here 

Europe: A new mandatory withdrawal button is on the horizon

Contrary to previous drafts, the EU plans to extend the scope of contract types for which a new e-commerce “withdrawal button” will be mandatory. If the European Parliament passes the new law, online traders will have to adapt their online shops.

Read the full article here 

Employment

Australia: Public holidays - can you require an employee to work?

Many businesses need their workers to work on public holidays as part of their usual operations. Unfortunately for those businesses, the Full Court of the Federal Court of Australia has decided that employers cannot assume that employees will, or direct employees to work, on public holidays; rather, it can only request this. With the King’s Birthday public holiday upcoming in June, employers should take careful note of this decision and consider whether requests for employees to work on that day are, in fact, reasonable.

Read the full article here

UK: Managing sexual harassment at work

Employers have a legal and moral duty to provide a safe workplace and, increasingly, this goes beyond investigating and dealing with allegations of sexual harassment when they arise. Proposed new legislation in the UK (which is currently progressing through Parliament) will put employers under a positive duty to take all reasonable steps to prevent sexual harassment and to protect workers from being harassed by third parties.

Read the full article here

Franchising

Kingdom of Saudi Arabia: Important changes to the franchise disclosure document requirements - what franchisors need to know

Recent amendments have been made to the franchise law in the Kingdom of Saudi Arabia, which affects what a franchisor must include in the franchise disclosure document it provides to a prospective franchisee in the Kingdom. The amendment removes the requirement to disclose information related to the franchisor’s financial status, which will help simplify the Franchisor’s regulatory requirements. We asked Khalid Y. Almahfouz, Director of Franchise Development at Monsha'at, for his thoughts on the change.

Read the full article here

Intellectual Property

Australia: Australian High Court injects some clarity on the relevance of reputation on trade mark infringement

The High Court recently delivered its judgment in Self Care IP Holdings Pty Ltd & Anor v Allergan Australia Pty Ltd & Anor [2023] HCA 8. The High Court held that in the context of alleged infringement, Self Care’s PROTOX trade mark is not deceptively similar to Allergan’s BOTOX trade mark and that the similarities between the marks were not such that consumers would be likely to wonder whether the products originated from the same source. The High Court clarified that the trade mark owner’s reputation is not a relevant factor in the context of trade mark infringement proceedings under s120(1) of the Trade Marks Act 1995 (Cth) (TM Act).

Read the full article here

UK: Lidl claims long-awaited victory in battle with Tesco over Clubcard logo

On 19 April 2023, UK High Court Judge Joanna Smith handed down the long-awaited judgment in the battle between the two supermarket retailers concerning Tesco’s adoption of its Clubcard logo which bore a distinct similarity to Lidl’s well known logo. Lidl has now prevailed, with the judge holding that Tesco has infringed both Lidl’s trade mark and copyright and passed itself off.

Read the full article here

News & Events

Bird & Bird's international M&A survey report

Bird & Bird’s M&A team has recently published a report outlining key trends in M&A deals over 2021 and 2022. The survey analysed detailed data from over 150 mid-market M&A deals (under $250m) completed between 2021 and 2022 across Europe and AsiaPac.

The results cover the COVID-19 pandemic, increasingly protectionist foreign investment regimes, geopolitical instability and, remarkably, an M&A boom. The survey shows how buyers and sellers allocated risk during this turbulent period.

Read the report here

Global Webinar: The contentious world of data privacy - where are we now?

10 May, 16.00 BST

Back in 2021 we ran our first global webinar on contentious data privacy, at a time when litigation arising out of GDPR was rapidly emerging but in most European jurisdictions remained in its infancy. Significant challenges to enforcement action were also still thin on the ground. As we approach the 5th anniversary of the introduction of the GDPR, we are excited to invite you to a global webinar where our team of data privacy experts will provide you with an update on how regulatory enforcement challenges and GDPR-related civil litigation have fared since then.

In this global webinar, our data protection lawyers across our European network will compare and contrast developments in their jurisdictions and discuss what organisations can expect from the next 5 years of GDPR- related litigation. Our team will guide you through recent significant disputes in various European jurisdictions and offer insights into how this area of litigation is likely to develop further. We will also consider key legal challenges to enforcement action, lessons learned and give informed predictions on the future direction of travel.

Find out more and RSVP here

Webinar: Mind the gap! Recent EU developments on gender, pay transparency and equal opportunities

11 May, 15.00 BST

The upcoming webinar will provide valuable insights into recent EU developments on gender, pay transparency and equal opportunities. Bird & Bird experts will cover topics such as the Directive on Gender Pay Reporting, which requires companies to disclose information on gender pay gaps; the Directive on Equal Opportunities, which aims to promote gender balance on company boards through quota arrangements; and recent EU case law on gender discrimination.

By attending the webinar, you can learn how to implement best practices and stay updated with the latest EU developments on gender, pay transparency and equal opportunities -- with the aim of creating a more inclusive, diverse and successful workplace.

Find out more and RSVP here