Talking Shop March 2024
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Welcome to the March 2024 edition of Talking Shop.
This edition includes a spotlight on sustainability, including access to our newly launched ESG Navigator; a summary of the UK CMA's consultation on whether to investigate the veterinary market over competition concerns; an update on the "battle of the supermarkets" from our IP team; and much more.
Please get in touch or visit our webpage for more information about Bird & Bird's Retail & Consumer Group.
In this edition:
- Spotlight on Sustainability
- Competition
- Consumer Law
- Data Protection
- Food Regulatory
- Finance & Payments
- Intellectual Property
- News & Events
Spotlight on Sustainability
ESG Navigator: Simplifying the ESG regulatory landscape
Businesses in the Retail & Consumer sector are undergoing a fundamental shift towards a more sustainable way of operating. With increasing pressure from stakeholders and developing legal requirements, you need to be able to demonstrate your ESG progress and compliance.
We are delighted to announce the launch of our ESG Navigator, which has been developed by ESG experts from across the Bird & Bird network to allow you to quickly simplify, identify, assess, and address ESG directives that affect your business.
Find out more and access the Navigator here
Europe: EU tightens rules for product design and sales - new obligations for manufacturers and sellers
The European Union is on the verge of adopting three pieces of legislation to promote more sustainable product design and extended product life. Together, these legal acts form an integral part of the European Green Deal and the ambitious objective of making Europe the first continent to be climate-neutral by 2050. The three EU legals acts complement each other and together cover the entire life cycle of a product. They entail far-reaching consequences for manufacturers and all players in the distribution chain.
France: French Bill to regulate fast fashion
The "Fast Fashion" bill, introduced on January 30, 2024, recently underwent deliberation before the French National Assembly with the aim of fostering sustainability and advancing environmental and social responsibility within the fashion industry.
This legislation is specifically directed at entities that rapidly introduce numerous new product lines to the market, a practice commonly associated with "fast fashion." The precise criteria for identifying such entities will be determined by the Council of State. Brands engaged in the rapid turnover of clothing and accessories collections will be obligated to adhere to the provisions relating to online consumer awareness and advertisement prohibition.
Poland: Navigating sustainability reporting - your guide to energy and ESG compliance in retail
The CSRD became fully effective in January 2024, extending the existing reporting standards set out in the NFRD. Starting from 1 January 2024, the first companies are obliged to collect data on sustainability issues from the areas of environmental protection, social affairs and corporate governance. Assuming that businesses will want to strive for the most favourable ESG compliance rating, it seems inevitable to move away from fossil fuels to more environmentally neutral energy sources. However, given the current share of low-carbon sources in the Polish energy mix, it does not seem possible for Poland to fully meet the ambitious climate targets set out in EU policies in the coming years.
Competition
UK: Under the microscope - CMA consulting on whether to investigate veterinary market over competition concerns
The UK's Competition and Markets Authority is consulting on whether to launch a formal market investigation into the veterinary services market for household pets in the UK, amid concerns that millions of pet owners may be overpaying for services and lack sufficient information to make informed choices. The move follows an initial review into the rapidly consolidating industry, the provisional findings of which identified multiple concerns with the market that the CMA believe require further investigation.
Consumer Law
France: Online platforms - intermediaries?
Wish and Getaround, platforms acting as intermediaries between product or service sellers and consumers, have been sanctioned by the French authorities for unfair practices. Find out more about both judgments in our summary.
France: To be or not to be a French influencer
In late January, a surprising shift occurred among several French influencers as they began communicating with their audiences in English. This departure from their usual use of the French language is driven by a financial motivation to evade oversight from the General Directorate for Fair Trading, Consumer Affairs, and Fraud Control. Since June 9, 2023, new regulations have been implemented in France, specifically governing the influencer profession. These regulations subject influencers to the provisions of the French Consumer Code, regardless of whether they operate within France or abroad.
Data Protection
Finland: Finnish Data Protection Ombudsman imposes penalty payment on major Finnish retailer
On 6 March 2024, the Office of the Finnish Data Protection Ombudsman imposed an administrative penalty payment of EUR 856.000 on Verkkokauppa.com Plc, a major Finnish retailer with a focus on e-commerce. The penalty comes in response to the retailer’s failure to define data retention times, i.e. the time for which it would retain customer account data. Additionally, the DPA found that the company’s practice of requiring the creation of a customer account to make online purchases was in breach of data protection rules.
Food Regulatory
France: New Decree prohibiting the use of meat-related terms for the designation of plant-based products
Recent developments in alternative proteins regulation in France led the Ministry of economy and the Ministry of agriculture to adopt Decree no. 2024-144 strictly regulating the use of certain meat-related terms used to designate foodstuffs containing plant proteins.
It is interesting to point out that if restrictions for dairy products have been defined at European level, such restrictions do not exist for meat-related terms. On 23 October 2020, the European Parliament voted on the Common Agricultural Policy rejecting all proposals to reserve meat-related names for products containing meat.
Finance & Payments
Germany: MiCAR – four important questions for retailers with NFT/token projects
The regulatory landscape for token projects in the European Union is on the verge of materially changing. Already in summer 2023, the EU Regulation on markets in crypto-assets (Regulation (EU) 2023/1114 – short “MiCAR”) entered into force. Yet, it will only start to apply in two stages: the first important date is 30 June 2024; the second one 30 December 2024. Based on this changing environment for NFT and token projects, it is worth taking a look at four important questions for retailers.
UK: Payment contracts - what retailers and e-commerce merchants should know
Whilst there is no doubt that payments/getting paid is a critical topic for retailers and e-commerce merchants, it is surprising that many merchants overlook the contracts governing the provision of payment services. But if things go wrong under a payments contract, merchants may be unable to accept payments from customers, meaning lost revenue. The recent payment processing difficulties at a number of the largest UK retailers has emphasised the importance of these contracts.
We set out some of the key legal and commercial issues for in-house lawyers at merchants to consider when contracting with a supplier under payments contracts.
Intellectual Property
Battle of the supermarkets - Lidl prevail at Court of Appeal over Tesco’s use of Clubcard logo
The high profile dispute between supermarket retailers Lidl and Tesco has now come to a head at the Court of Appeal, with Lidl emerging as the winner. The dispute related to Tesco’s adoption in 2020 and subsequent use of its Clubcard Prices logo for its discount price scheme, which Lidl claimed infringed a number of its IP rights in the well known Lidl logo.
Australia Case Note: Rising (and falling) from the steam – phoenix company liable for trade mark infringement
Steam Vac Cleansing Systems Pty Ltd (SVCS) owns a business that manufactures, sells, markets and distributes carpet cleaning equipment and apparatus in Australia. SVCS is the registered owner of 7 trade marks in connection with carpet cleaning machines and related goods.
SVCS alleged that the first and second respondents had, and the third respondent continued to, market and sell steam cleaning equipment using marks were substantially identical with, or deceptively similar to the SVCS Marks.
UK: Supreme Court looks at ‘targeting’ for online TM use
In a recent decision the Supreme Court has for the first time addressed the issue of when the use of a trade mark on a foreign website infringes UK trade marks. In doing so, the Court reviewed the law on ‘targeting’, and considered the Court of Appeal summaries of the law in the earlier Merck and Argos cases were correct. Brand owners will find useful guidance in the decision on how to evaluate the ‘targeting’ question in certain situations.
News & Events
We contribute to the Law Over Borders Fashion Law Guide
Our teams in Hong Kong (Hank Leung, Harry Wong), Singapore (Lorraine Tay, Cheryl Lim) and Spain (José Miguel Lissén, David Fuentes) have contributed chapters to the Law Over Borders Fashion Law Guide again this year. The guide provides answers and insight into the law around the business of fashion in 20 jurisdictions.
We partner with Swedish food network, Livsmedel i Fokus, on prestigious Impact Maker Award
For the second year in a row, our Food & Beverage team partners with Swedish food industry network, Livsmedel i Fokus, on their prestigious Impact Maker Award.
Bird & Bird proudly serves as partners and members of the judging panel for the award, alongside Lantmännen, Paulig Group, and Livsmedel i fokus. The Impact Maker Award recognises the most innovative startups within Sweden’s food and beverage sector.
To compete for the award, startups must exhibit uniqueness, growth and profitability potential, innovation, a clear business model and alignment with the UN agenda 2030. We are excited to start the judging process and delve into the future of the Swedish food & beverage industry.
Find out more and nominate here
Event: GDPR & Email Marketing & ePrivacy - need to know seminar for marketing and legal teams
23 April, 09.30 BST
Are you up-to-speed with the privacy rules governing B2C and B2B electronic marketing activities? Often, the need to comply with the EU and UK General Data Protection Regulation (GDPR) and the e-Privacy framework means being aware of a number of important considerations and compliance questions.
In this exclusive paid workshop, we will delve into what these key considerations are and provide answers to your questions to help maximise your B2C and B2B electronic marketing processes by ensuring they comply with the most important pieces of privacy legislation.
This is a hybrid event and, for those based in London, we would welcome you to attend in-person for maximum engagement. You'll have the option to register for in-person or online when purchasing your ticket through Eventbrite using the button.
