Talking Shop June 2023

Welcome to the June 2023 edition of Talking Shop. In this edition you can find an exploration of the benefits of building a virtual e-commerce store; a summary of generative AI considerations for brand creators and owners; an overview of the new Dutch EPR system; and much more.

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

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In this newsletter:

• Spotlight: Building a Virtual E-Commerce Store
• Consumer Law
• Intellectual Property
• Regulatory
• News & Events

Spotlight Article: Contractual pitfalls: Building a virtual e-commerce store

Retailers are reporting that customers will dwell in a virtual store environment for 73% longer (and that purchases will thereby increase by 184%) as compared with a physical store offering the same goods. However, venturing into these technologies will mean that most traditional retailers need to engage third parties to build, develop and deploy the virtual store - and this new contractual relationship can create risk and liability exposure that is critical to bear in mind throughout a virtual expansion. We set out the benefits of operating a virtual store, followed by recommendations for contracting to build, develop and deploy the same.

Read the full article here

Consumer Law

Poland: Dark Patterns becoming a new hot topic for the Polish regulator

Since last year, online platforms and businesses must be more careful not to use dark patterns to deceive or manipulate consumers. The Polish Office of Competition and Consumer Protection has come out strongly against such behaviour and is going to be even more active this year. Although the regulation directly prohibiting dark patterns (Digital Services Act) is not yet fully applicable within the European Union, such practices are also prohibited by the Polish Act on Counteracting Unfair Market Practices. They may be classified as an unfair market practice that misleads consumers and can lead to a penalty of up to 10% of the business’s annual turnover.

Read the full article here

France: Termination in a few clicks - new obligations for businesses to offer consumers online termination functionalities

A decree, which entered into force on 1 June, introduced new provisions into the Consumer Code, to allow consumers to terminate contracts online with a few clicks, including a "terminate your contract" button. This termination feature must be offered to consumers whose contract has been concluded: (a) online; or (b) by another mean, if on the day of termination by the consumer, the trader offers the consumers the possibility of concluding contracts online.

Read the full article here

Intellectual Property

Germany: T-Shirts, bicycles or lamps… are we talking about art? And what does that imply?

The shape of a product can be protected by various IP rights, typically as a shape mark or a design. The latter is expressly defined as “the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation” in Article 3 (a) of Regulation (EC) No 6/2002 of 12 December 2001 on Community designs. The outer appearance of (functional) everyday objects is therefore generally protected by the means of design law. But can this outer appearance of a (functional) product, such as a t-shirt, a bicycle or a showcase lamp, also be considered art and give rise to copyright claims? And what does that entail?

Read the full article here

UK: Generative AI considerations for brand creators and owners

Whether you like it or not, artificial intelligence (AI) pervades modern society and has done for some time. Think, for example, of virtual personal assistants such as Apple’s Siri, Amazon’s Alexa, Google Assistant and Microsoft’s Cortana. Like any disruptive technology, the rise of AI has brought numerous opportunities and challenges for individuals and businesses. This has never been more true than for generative AI products such as ChatGPT and DALL-E. We summarise some of the main issues posed by these generative AIs to brand creators and owners in the UK and provide ways of mitigating the risks.

Read the full article here

Regulatory

Europe: EU general product safety legislation set for an overhaul

On 23 May 2023, Regulation (EU) 2023/988 on general product safety was published in the Official Journal of the European Union. The GPSR will, among other things, repeal Directive 87/357/EEC and Directive 2001/95/EC on general product safety. The GPSR will apply from 13 December 2024. However, as part of a transition period, the GPSR will not prevent the sale of products covered by, and compliant with, the GPSD, that were placed on the EU market before 13 December 2024.

Read the full article here

Europe: Do your goods comply with the mandatory due diligence obligations in the new EU Deforestation Regulation 2023/1115?

The Deforestation Regulation 2023/1115, which intends to ensure that goods that have been produced on ‘deforested or degraded land’ anywhere in the world are no longer sold within the European Union, enters into force on June 29th 2023. This means that as of this date, the DR shall be binding and directly applicable in all EU member states. In this article we look at the obligations which the DR imposes on goods sold in the EU, how to ensure compliance with the DR and what sanctions maybe enforced if the DR is infringed.

Read the full article here

The Netherlands: Warning for all textile companies - the Dutch EPR system is here on 1 July 2023

1 July 2023 marks a significant next step in the Dutch regulatory framework for fashion companies and any other businesses bringing textile products onto the market in the Netherlands. On this date, the Dutch Extended Producer Responsibility Textiles Decree comes into force, setting off the 6-week deadline to comply with the first obligations of the Decree. Extended Producer Responsibility, or EPR, refers to schemes that intend to make producers financially and operationally responsible for managing a suitable collection system for discarded products.

Read the full article here

News & Events

Webinar: Buy Now Pay Later - what's on the horizon?

05 July, 10.00 BST, Online

Buy Now Pay Later (BNPL) is a feature which lets consumers buy goods and pay them back in interest free instalments. BNPL is an attractive feature across the globe as it provides a more affordable and accessible means of payments to consumers, especially in comparison to traditional banking services and the associated high interest rates.

In various countries, however, the call for regulation is becoming louder and louder, and in some countries such as Denmark and the UK new regulation is already in the making. In the Netherlands there is currently a strong public debate about the risks around BNPL. This panel will discuss the main BNPL themes and global challenges and share the predictions on the BNPL Horizon.

Find out more and RSVP here

Event: Virtual environments - changing the game for brand engagement

11 July, 15.30 BST, London

Brands across a range of sectors – including fashion, sport, automotive, food and beverage – are seeing immersive virtual activations as a new vertical in which to meet new consumers and also engage existing ones. Whether integrations within a video game, the sale of items within a metaverse platform, or creating a virtual experience from scratch, this is the new frontier for brand advertising and marketing.

We are delighted to be partnering with metaverse data platform, GEEIQ, to bring together thought-leaders from leading brands and businesses that are endemic to gaming and the metaverse for an evening of discussion, networking and drinks. Starting with a panel chaired by Will Deller (Head of Bird & Bird's International Video Games & Esports practice), Charles Hambro (CEO and Co-Founder of GEEIQ), Amanpreet Singh (Global Media Lead, Innovations & Brand Partnerships, Unilever) and Morgan Tucker (Head of UGC, Rec Room), we'll be looking at the ways brands can enter these virtual spaces, the opportunities, the challenges, and what makes a winning strategy.

Find out more and RSVP here