Talking Shop March 2022

Welcome to the March 2022 edition of our Retail & Consumer news round-up

This newsletter focuses on key news and updates for retail and consumer-facing businesses around the world. In this edition we are pleased to include a spotlight feature on luxury fashion resale, alongside articles on the draft VABEO, brand protection in the metaverse, the logistics market in Sweden, the latest CJEU clarifications on EU food labelling requirements and much more. At the end of the newsletter, you can find details of our recent news and 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: 

Spotlight on Luxury Fashion Resale

Luxury fashion resale: Just the tip of the iceberg

Consumer shopping and luxury spending trends confirm that fashion resale is still growing. Bain & Company reported last year that luxury resale is estimated to be worth around €28 billion and, importantly, is rising. The reasons for the continued evolution are plentiful. Given the accelerated growth in this area, as of February 2022, the British Retail Consortium announced that they are holding conferences to discuss potential guidelines on the resale of second-hand clothing. It remains to be seen what the guidelines would entail; in particular, whether the guidelines will address the particular concerns that luxury brands specifically encounter, and more generally whether sellers will be held to consistent standards in terms of authenticity guarantees, product tracing, or otherwise.

Read the full article here 

Advertising & Marketing

Advertisers beware! Ensuring compliance with the new Therapeutic Goods Advertising Code in Australia

Any individual or entity involved in marketing and advertising therapeutic goods including manufacturers, retailers, and marketing agencies are on notice to ensure that by 30 June 2022, they are compliant with the new Therapeutic Goods Advertising Code 2021. The TGAC 2021 applies to advertisements for therapeutic goods including over the counter medicines, medical devices, vitamins, supplements, and certain cosmetics such as sunscreen. It sets out the minimum standards and requirements governing the advertising of therapeutic goods in Australia.

Read the full article here

Last orders for responses to consultation on advertising alcohol alternatives in the UK

The Committee of Advertising Practice (CAP) and the Broadcast Committee of Advertising Practice (BCAP) have been busy considering whether the existing rules for advertising no- and low-alcohol (‘NoLo’) products are still appropriate for today’s ‘sober-curious’ drinkers. Following a public consultation last year, the advertising rules for low alcohol products were relaxed in January 2022 to permit brands to promote the benefits of low alcohol drinks in comparison to higher strength drinks. However, it is likely that new regulation for the NoLo sector is on its way, with CAP and BCAP announcing proposals to introduce rules specifically for marketers of alcohol alternative products. The consultation document and accompanying guidance can be found here and the consultation closes at 5pm on Thursday 5 May 2022.

Read the full article here

Online advertising reforms in the UK

The government has launched a public consultation on its proposals to review and reform the regulatory landscape for online advertising via its Online Advertising Programme (OAP). Online advertising has experienced exponential growth in recent years, and the government is eager to ensure that regulators have the right powers and tools at their disposal to mitigate consumer harm.

Read the full article here

Competition & Consumer Law

The Draft VABEO is finally published: The new competition law regime for supply chain agreements

The UK Government has published the long-awaited Draft Vertical Agreement Block Exemption Order 2022 which will replace the Retained Vertical Agreement Block Exemption regulation due to expire in May 2022.

The Draft VABEO sets out the application of UK competition law to vertical (supply chain) agreements. The Draft VABEO comes with an accompanying explanatory memorandum but without the CMA’s Guidance which will also deserve close scrutiny. The Draft VABEO gives effect to the CMA’s recommendations (previously summarised here).

Read the full article here

Big data in e-commerce: Lack of consumer awareness and no competitive disadvantage in Hungary

The Hungarian Competition Authority’s recently concluded market analysis into data assets revealed that most Hungarian online stores do not use the potential of data assets, thus its absence does not constitute a significant barrier to market entry or expansion. The market analysis also revealed that Hungarian consumers know little about the data collection and management practices of online stores, and a significant proportion of them are explicitly afraid that the data they provide when shopping online will be misused.

Read the full article here


Living with COVID-19 in the UK: An employer’s guide

Nearly two years after the introduction of the United Kingdom’s first COVID-19 lockdown, England’s COVID-related restrictions officially came to an end on 24 February 2022. In Scotland and Wales, restrictions are set to end on 21 March 2022 and 28 March 2022 respectively. In Northern Ireland, measures are also easing gradually.

It is hard to imagine that life will ever return back to exactly how it was pre-COVID in the near future. However, the UK government is of the view that we must now “live with and manage” the risk of COVID-19, as set out in its Living with COVID plan. In this article we take a look at how the end of Covid-19 restrictions and support might impact and shape the employment landscape in the future.

Read the full article here

Intellectual Property

Brand protection in the Metaverse: NFTs and top tips to handle them

Whether you are deep into the realms of the Metaverse, or still trying to distinguish your Web2 from your Web3, there is no escaping the growing conversation around NFTs. The infiltration of digital assets into the consumer brands ecosystem presents a number of trade mark challenges but may also yield opportunity. In this article we outline four important considerations for brand owners.

Read the full article here

Year in review: Key IP decisions in the fashion industry

In 2021, courts in Europe and Australia delivered a series of important rulings of interest to and affecting the fashion sector.

In collaboration with the Journal of Intellectual Property Law & Practice (Oxford University Press) our international team provides a round-up of these rulings for judgments issued in the period 1 January–31 December 2021.

This analysis is organised by substantive IP right and enforcement aspects and divided by country including: Australia, Belgium, Czech Republic, Finland, France, Germany, Italy, Poland, Slovakia, Spain, The Netherlands, and United Kingdom.

Read the full article here


From scooters to sustainability: What does the logistics market look like in Sweden?

Difficulties with getting goods on time and increased transportation costs during the COVID-19 pandemic have resulted in Swedish companies turning to production and warehousing in Sweden instead of abroad. In other news, electric scooters have stirred up emotions among politicians, private actors and residents in the city of Stockholm.

Read the full article here


Latest entries in the "CJEU cookbook"

Ensuring compliance of food labels with the sophisticated EU food regulations sometimes keeps legal teams, marketing teams -or both!- awake at night. That is because even where applicable legal provisions are set out in a particularly detailed and refined way, questions may arise as regards their interpretation and hence, the correct application thereof.

It is thus no wonder that a decade after its enactment, the FIC Regulation still regularly raises interpretative questions concerning food labelling questions. We provide a case law update on the latest clarifications of the CJEU on EU food labelling requirements.

Read the full article here

News & Events

The Hague: [email protected] 2022

31 March, 15.30 - 18.00 UTC

On 31 March we will be hosting our exclusive annual [email protected] event for our female clients and contacts. [email protected] is a unique event for business women providing expert insights into relevant hot topics and creating networking opportunities. This edition will revolve around fashion and technology. What does the future of fashion have in store for all of us?

Anne-Christine Polet (Head of HATCH & STITCH) will focus on digitizing the physical process of fashion creation, presentation and sales. All with the aim to create a better, digital, more sustainable future for fashion. Bird & Bird lawyer Nina Dorenbosch will present on fashion and the metaverse from a legal perspective, touching upon topics like NFTs, virtual goods and gaming.

Before the presentations you will have the opportunity to visit the exhibition "MAISON AMSTERDAM" and get inspired by over 150 creations that portray Amsterdam as a fashion capital with its own entirely unique signature. After the presentations you are invited for drinks and bites hosted by 't Nieuwe Kafe.

Find out more and RSVP here

Webinar: Retail & Consumer & New EU E-Commerce and Consumer Law

5 April, 16.00 - 17.00 UTC

The legal landscape in the EU for e-commerce has changed. New rules are (or will very soon be, depending on the Member State in question) introduced for, inter alia, the sale of digital content and services, e-commerce platforms, online marketplaces and online reviews.

This online event spotlights the new EU e-commerce and consumer law that will soon apply in all EU Member States: the Digital Content and Services Directive (EU 2019/770); the Sale of Goods Directive (EU 2019/771); and the Omnibus Directive (EU 2019/2161).

During a live webinar, our IT/Commercial team will first guide you through the new legislation on an EU level, discussing the changes to the existing rules and explaining where differences could arise between various Member States. Our team will continue with a more in-depth explanation of the implementation of the new rules in the Netherlands and will conclude with practical, commercial guidance on the application of the new rules.

Find out more and RSVP here

Webinar: What does it mean to be ‘green’? A guide to green advertising claims

26 April, 10.00 - 11.00 UTC

28 April, 16.00 - 17.00 UTC

Following our successful 2021 event, we are delighted to invite you to our second global webinar on the “Do’s and Don’ts” of Green Advertising taking place on 26th and 28th April. We are holding two events to ensure the event is accessible to those in different time zones.

In the webinar we will: give an overview of initiatives relating to green advertising in Europe, Asia Pacific and the UAE; highlight actions taken by local enforcement authorities in this area; give practical guidance on helping your green claims stay on the right side of the law; and look at how regulation may develop in the future.

Find out more and RSVP for 26 April here

Find out more and RSVP for 28 April here

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