Talking Shop January 2019

Welcome to the January edition of our Retail & Consumer monthly news round-up. This newsletter focuses on key news and updates for retail and consumer-facing businesses around the world.

At the end of the newsletter, you can also find details of some of our upcoming 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:



Cross-border disputes update: good news for contracts containing English exclusive jurisdiction clauses

As the political uncertainty surrounding Brexit increases, the UK government is preparing for a potential 'no deal' scenario. In the context of cross-border disputes a major step was taken towards this preparation at the end of December 2018 when the UK government deposited its instrument of accession in respect of the Hague Convention on Choice of Court Agreements 2005 ("the Convention").

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Deal or no deal: the EU, the UK and your trade marks

Katharine Stephens and Uwe Lüken discuss the effect Brexit is likely to have on trade mark portfolios as well as what trade mark owners need to think about right now.

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Brexit by design: a fashion industry checklist to prepare for an EU exit

Francine Cunningham spoke to Fashion Roundtable about what fashion businesses should be doing to ensure that the industry retains both its economic clout and "soft power" in the wake of Brexit.

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PayPal surcharging: FlixMobility appeals decision of Munich Regional Court

FlixMobility responds with an appeal to a surprising decision of the Regional Court of Munich I (LG München) from December 2018 in favour of the German association to combat unfair competition (Wettbewerbszentrale) which prohibits surcharging for the use of PayPal. A written statement to the court is expected soon bringing the dispute to the Higher Regional Court of Munich (OLG München).

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What lessons can retailers learn from the European Commission's investigation into Guess' distribution arrangements?

On 17 December 2018, the European Commission ("Commission") announced its decision to fine the fashion brand Guess nearly EUR 40 million for imposing anti-competitive restrictions on its authorised retailers. This announcement demonstrates the increased scrutiny of distribution arrangements in the e-commerce sector and is yet another warning for retailers to ensure that all of their commercial agreements are compliant with competition law. This decision also shows the practical implementation of the Commission's focus as set out in the final report of its e-commerce inquiry. When published, the decision may give some insight into what we might expect as the Commission prepares to update the Vertical Agreement Block Exemption Regulation (VABER) and its accompanying Guidelines.

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Employees' sick leave in Poland under public authorities' scrutiny: misleading official letters

Recently, the Polish Social Security Institution (ZUS) has been sending out letters regarding the employer's obligation to investigate their employees' sick leave.

The letter may give the wrong impression that employers have a statutory obligation to carry out such investigations and report their outcome to ZUS on a monthly basis.

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Foodora for thought! What does the Fair Work Commission's decision that a Foodora rider was an employee mean for the gig economy?

On 16 November 2018, the Fair Work Commission (FWC) found that Joshua Klooger, a Foodora delivery rider, was an employee of Foodora.

Foodora's business model, like many Gig-economy businesses, relies on the riders not being employees as it creates costs the business model does not permit. Equally, that model supports the very idea behind the 'gig' economy. People have many 'gigs', and are not engaged under an ongoing contract of service.

For those reasons this decision is important, even though the FWC has done no more than apply long standing principles around the employee/contractor distinction. This article looks at the key take-aways from the decision surrounding the true nature of the relationship between Klooger and Foodora.

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Amendments to the Singapore Employment Act: harmonisation of employment rules across all employee ranks

From 1 April 2019, the Employment Act (EA) will be expanded to cover all employees. The amendments will lead to a more regulated dismissal regime, enhanced statutory benefits and protections for all employees, and a more flexible approach towards salary deductions. We set out a brief discussion on the salient points in this update.

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Trade mark law across Europe is changing

The Trade Marks Directive (EU) 2015/2436 (the "Directive") should have been implemented by all member states on or before 14 January 2019 (with the exception of one provision relating to administrative procedures). A number of member states have, to date, amended their law to implement the necessary changes, including: Czech Republic, Denmark, Germany, Slovakia, Spain, Sweden and the UK.

A great many of the changes are technical in nature; the greatest benefit to companies being that they harmonise national trade mark laws and bring national trade mark law into line with the EU trade mark regime.

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Profit Diversion Compliance Facility (the PDCF): last chance for businesses to correct their tax affairs

On 10 January 2019, HMRC announced a new voluntary disclosure facility that gives companies an opportunity to disclose and correct any tax inaccuracies relating to profits diverted out of the UK. The PDCF is being framed as the last chance for businesses with cross border arrangements to correct their tax affairs or face higher penalties in the future.

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Trade and Customs


The UK Government's planned regimes on trade and customs

The Government has enacted the Taxation (Cross-border Trade) Act 2018, to establish an independent UK trade and customs regime. This will be necessary as from Brexit when the UK leaves the EU Customs Union. Whilst the UK is still a Member State of the EU, trade and customs are essentially a matter of EU law. The Taxation (Cross-border Trade) Act establishes a system of import declarations and duties on non-domestic goods entering the UK, sets up a system of export duties, and makes changes to the VAT regime.

The Act will also empower the Trade Remedies Authority to take anti-dumping and anti-subsidy measures against imports causing injury to UK industry. The government is in the process of establishing the Trade Remedies Authority through a separate piece of legislation, the Trade Bill.

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Events and Activities



We will be hosting the next Welltodo Founder Series events, taking place on 5 February and 14 May, at Bird & Bird London.

Meet members of our international Hotels & Leisure team at the Hotel Investment Forum, taking place on 4-6 March in Berlin.

Save the date for our "Fuelling Productivity" conference with EP Magazine, taking place on 16 May in London, where we will explore the concept of "health is the new wealth". More details to follow.

Save the date for our third Retail & Consumer Annual Update, taking place on 20 June in London. More details to follow.


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We are happy to announce our new offering: Regulatory & Public Affairs.

We've boosted our Commercial team with the arrival of Tomasz Zalewski as partner in Warsaw.

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