Talking Shop November 2018
Welcome to the November 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 some of our recent news, 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:
UK Government sets out changes to consumers' online dispute resolution rights
On 28 October 2018 the Department for Business, Energy & Industrial Strategy ("BEIS") published a draft of the Consumer Protection (Amendment etc.) (EU Exit) Regulations 2018 . The draft Regulations seek to ensure that EU-derived consumer protection legislation remains appropriate and effective following the UK's departure from the European Union. The changes will affect how consumer disputes are approached and managed by traders and consumers within the UK & the EU.
The "tidal wave" of data protection related class actions: why we're not drowning just yet...
Prior to the GDPR's entry into force in May this year, much was being said about the "inevitable" deluge of class actions likely to flood the UK court system as a result. Many justifications were put forward to support this theory. The goal of this article is not to cast doubt upon the theory and reasoning set out above, which still holds good; but, six months into the new GDPR regime, we are far from drowning in group litigation - and below we consider some of the factors why the arrival of the "tidal wave" may have been delayed.
Finland supplements the GDPR: Parliament approves the new Data Protection Act
On 13 November 2018 the Finnish Parliament approved the Data Protection Act (tietosuojalaki). That act complements the GDPR and repeals the Personal Data Act of 1999. The date on which the Act enters into force will be confirmed later. Besides setting forth the national provisions required by the GDPR, the Data Protection Act also uses the opening clauses in the Regulation on several occasions.
The pitfalls of starting work without a formal agreement: Court of Appeal ruling in Arcadis Consulting v AMEC
The Court of Appeal has considered multiple exchanges of proposed contract terms and correspondence in order to determine the terms on which two parties contracted for design work and whether a cap on liability was agreed between them.
The case serves as a useful reminder of the pitfalls of starting work before a signed contract is in place, and of the need for clarity in negotiating multiple sets of terms simultaneously.
Data breaches by rogue employees: UK employer's "it wasn't me" defence will not wash - and in Belgium...?
In its October 2018 landmark decision the UK Court of Appeal held supermarket Morrisons vicariously liable for the actions of a rogue employee who leaked and published the supermarket's payroll data (including bank details and salaries) online out of spite against his employer[1]. Whilst the perpetrator of the data leak was convicted in response to this unauthorised disclosure in 2015 and jailed for eight years, some of the victims of the leak (a group of some 5,518 employees) filed a class action suit against their employer seeking damages for the upset and distress caused.
Spain finally implements PSD2
On 23 November, the Spanish Council of Ministers finally approved the implementation in Spain of the Directive (EU) 2015/2366, of 25 November, on payment services in the internal market ("PSD2"). The implementation was made with a delay of almost 11 months through a Royal-Decree Law 19/2018, of 23 November, on payment services and urgent measures on financial matters (the "Royal-Decree").
UK Goverment proposes amends to the Interchange Fee Regulation in the UK
The UK government has published a draft version of the Interchange Fee (Amendment) (EU Exit) Regulations 2018 (IFRA Regulations) which make amendments to retained EU law relating to interchange fees and other matters under the EU Interchange Fee Regulation (EU IFR). This is to ensure that the interchange fee regime continues to operate effectively in a UK context once the UK leaves the EU.
Munich Regional Court to decide on surcharging when using PayPal
A private German association to combat unfair competition (so-called Wettbewerbszentrale) and Flixmobility (company behind long-distance bus service operator Flixbus) argue in front of Munich’s regional court about surcharging when using PayPal. Originally planned for November 2nd, the decision is now expected mid-December 2018.
There's no accounting for tastes: CJEU denies copyright protection for flavour
In its 13 November 2018 decision, the Court of Justice of the European Union ("CJEU") finally put an end to a long-running dispute over the taste of a Dutch cream cheese called "Heksenkaas" (in English: "Witches' cheese").
The judgment followed on from a dispute between the Dutch companies Levola and Smilde, who both produce a similar cream cheese. Levola claimed that Smilde's product "Witte Wievenkaas" infringed upon its copyright in the taste of "Heksenkaas". Levola invoked the Dutch Supreme Court's earlier ruling in Lancôme v Kecofa, which allowed copyright protection for a particular scent. Smilde on the other hand, denied any subsistence of copyright in the taste of a product.
Key implications on the use of registered trade marks of licensors in local trade names of licensees
In the Middle East, it is a common request from licensees, franchisees and/or distributors ("Licensees") to use the franchisor's/manufacturer's trade mark within their local company name ("Licensor"). This however can cause many issues upon the expiry and/or termination of the agreement between the parties and therefore, it is important to consider whether the use of the Licensor's trade mark in the Licensee's business/company name is permitted.
Reports of trade mark cases for CIPA
This month we report on the decision in Coöperatieve Vereniging SNB-REACT, which addressed the standing of collective representation bodies acting on behalf of their members. We also consider the Court of Appeal's decision in Argos Limited v Argos Systems Inc, which considered the issue of targeting via advertisements on billboards.
Possible amendment of the Dutch Trading Hours Act
The Dutch State Secretary of Economic Affairs and Climate wishes to amend the Dutch Trading Hours Act (Winkeltijdenwet) so that retailers can no longer be forced to open or close their shops at times they have not explicitly agreed to. The consultation period on the legislative proposal has recently ended. This entails that the responses received will now be examined and the proposal for the legislative amendment may be revised. After this, the Council of Ministers or the Minister will decide on the final proposal.
Amendment proposal vs proposal for annulment of the Act that prohibits sales on public holidays in the Czech Republic
The main aim of the Act No. 223/2016 Coll., on Retail and Wholesale Opening Hours, as amended ("Act on Opening Hours" or "Act") that came into effect on 1 October 2016 is to regulate retail and wholesale opening hours so as to prescribe a general prohibition on sales on certain (but not all) public holidays and to restrict sales on Christmas Eve in the Czech Republic. However, the restriction, or prohibition respectively, of opening hours does not apply to shops the sale space of which does not exceed 200 m2, petrol stations with fuels and lubricants, pharmacies, shops in places of increased concentration of passengers at airports, railway stations and bus stations, shops in health care facilities and retailers and wholesalers at times when the state of danger, state of emergency or state of war is declared.
Bird & Bird Milan launches NEXT® project dedicated to soft skills development for business lawyers of the future
Created by Rita Tardiolo and Edoardo Bàrbera - Senior Associates in Bird & Bird's Milan office - NEXT® offers a path that goes beyond traditional training and focuses on the development of non-technical skills including leadership, communication, negotiation and time management. The project includes five sessions on a variety of themes run over the course of a year by a team of selected coaches: Barbara Demichelis, Giovanni Marchisio and Gioacchino Mozzon of Iocap, Katherina Tsalikis of Kinetic Thinking, Monica Ballarini of Coaching & Coaching and Julie Johnson, Head of Learning & Development of Bird & Bird London.
"Put simply, NEXT® represents the philosophy of Bird & Bird" - commented Giovanni Galimberti and Raimondo Maggiore, Managing Partners - "Continuous research of excellence, versatility, ability to network and a bit of fun: these are the features that set us apart, together with the will and constant commitment to grow professionally and humanly. The response from clients and the business world to the sessions we have planned for the first year has been very positive, and we are delighted to have responded to, and perhaps even anticipated, a need that evidently was there ".
For further information about NEXT®, please contact Rita TardioloEdoardo Bàrbera.
Welltodo releases 2019 Consumer Wellness Trends Report
Wellness is a booming global industry, with an annual turnover of $4.2 trillion. Our Wellness team works closely with Welltodo – a leading global resource and consultancy that helps people to build incredible businesses and careers in the wellness industry through its content, events, recruitment and coaching services, and more. We partner with Welltodo on the Welltodo Founder Series - a leading event series in London and Singapore for forward-thinking brands, start-ups, influences and investors in the wellness industry – and are also title sponsor of the annual Welltodo Summit, which attracts over 250 dynamic businesses operating in this space.
Welltodo's recently released Consumer Wellness Trends Report explores the eight key consumer trends that it predicts will impact the trajectory of the global wellness industry, not just now, but also into the future.
Compiled by trend experts, with support from its network of thought-leaders, industry veterans, disruptors and innovators, this 45-page report presents Welltodo’s unique perspective on the themes driving this fast-growing market.
Uncovering and interpreting insights ranging from how purpose-driven millennials are shaping what it means to be "well", to which wellness brands are pioneering a movement towards more accessible and relatable solutions addressing mental illness, this invaluable resource sheds light on how your brand can better understand the desire for a more connected and holistic approach to health and wellness – and how this is driving cross-collaboration between the healthcare and wellness sectors.
This report will help you create more innovative methods for your consumers to get involved in product and service design and community engagement – both keys to longevity in the rapidly evolving wellness industry landscape.
Access your full copy of Welltodo’s 2019 Consumer Wellness Trends Report here.
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