Welcome to the June 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 you can find articles on the new UK Digital Markets Competition regime, the Hong Kong PCPD’s recommended model contractual clauses for cross-border transfers, a spotlight on the metaverse, 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.
In this newsletter:
Spotlight on the Metaverse
Trouble in NFT paradise: Lessons for brand owners
“NFT” along with “Metaverse”, are the business community’s latest buzzwords. NFTs provide new and interesting opportunities for businesses to promote their products and services and an avenue to introduce new products; whilst the Metaverse promises to be a whole new playground and marketplace. However, a field of opportunity can also be a minefield for the unwary.
As with many new technologies in the past, questions have arisen as to how traditional IP laws, many parts of which were written in more archaic times, should be applied to NFTs. We examine two NFT fights that are currently ongoing before the US courts which touch on brand-related issues and distil from them some takeaways for brand owners.
The Sandbox and the Metaverse
The term metaverse has no clear meaning but it is often used to talk about the convergence of various technologies (e.g. AR/VR and games), in the future, to create digitally immersive experiences, which may or may not involve the use of decentralized technologies such as blockchains. Meanwhile, blockchain and crypto enthusiasts have rebranded the term blockchain and crypto to the term “Web 3.0” in order to explain the increasing number of use cases for blockchain technologies beyond cryptocurrencies (e.g. non-fungible tokens (NFTs), being blockchain-based tokens that provide digital identification of an asset associated with the NFT).
The Sandbox (a play-to-earn game, with blockchain elements) is arguably an example of this combination of digital immersive experiences, Web 3.0 and blockchains.
The Metaverse: Golden opportunity or virtual headache?
Will the metaverse radically transform working life, or just exacerbate the challenges posed to employers by hybrid and remote working? In the short time since Mark Zuckerberg, co-founder of Meta, announced the company’s “vision of the metaverse as the successor to the mobile internet”, much has been said about how the metaverse will impact the working world and some commentators see it as having potential for transformational change. However, with the technology currently in its infancy, it is difficult to predict in what exact shape or form employers will engage with the metaverse, and therefore what challenges and opportunities will present themselves to those who embrace it.
Despite the present lack of clear form, there are still some interesting questions that can be explored at this stage, as well as practical steps employers can take to ensure that when the time does come, they are equipped to embrace the metaverse in a way that suits the needs of their business, creating benefits and not headaches.
UK: Don’t botch it up! Cosmetic surgery ads targeting under 18s are banned
Following a public consultation last year, the Committee of Advertising Practice (CAP) and Broadcast Committee of Advertising Practice (BCAP) announced new targeting restrictions that prohibit cosmetic intervention advertising from being directed at under-18s. These new restrictions are now in effect, as of 25 May.
The ban now in effect, means that companies can no longer advertise procedures such as breast enhancements, nose jobs, dermal fillers, skin rejuvenation treatments, chemical peels, laser or light treatments and teeth whitening products to under-18s across social media, ads during TV breaks, or any other media that will appeal to under-18s.
UK: Yellow card for Michael Owen from the ASA
Michael Owen has been in hot water with the ASA recently with respect to tweets relating to Punt Casino, an online casino operator, and his own NFT project. Whilst regulation has not yet caught up with the fast-moving and complex world of cryptoassets, the ASA has been more active in this space.
France: Better consumer information on the environmental qualities of products
The “Anti-waste for a circular economy” (AGEC) law adopted on February 10 2020 introduced new measures aiming to build a more sustainable model for society. Since its publication, many decrees with a direct impact on the daily lives of French people have been published, including an important decree on consumer information in recent weeks.
Decree no. 2022-748 of April 29, 2022 on “Consumer information on the environmental qualities and characteristics of waste-generating products”, implementing article L. 541-9-1 of the French environment code (article 13 I of the AGEC law), now provides a framework for the environmental claims made by producers and makes it mandatory to inform consumers about certain environmental characteristics of purchased products.
France: CJEU ruling on commercial warranty information interpreted in light of French law
In a judgment of May 5 2022 , the Court of Justice of the European Union (CJEU) ruled that third-party sellers on online sales platforms such as Amazon were not systematically required to inform consumers about the commercial guarantees relating to the products they offer.
According to the CJEU, this information obligation is only imposed on sellers when the commercial guarantees provided are central to the purchase decision for the consumer. An unconditional obligation to provide such information, in all circumstances, seems to be disproportionate due to the considerable work involved in collecting and updating such information for sellers. This ruling calls into question the French regulation and its practical interpretation by the French authorities and courts in this area.
France: Complaint by a consumer association against Back Market regarding the display of its prices
On June 15 2022, UFC Que Choisir (a consumer protection association) filed a complaint for misleading commercial practices before the Paris judicial court against Back Market, a platform selling renewed devices, notably on the grounds that the display of prices on the website would not comply with French consumer law. The price of renewed devices is displayed by comparing it with the price of the same new product.
However, since the entry into force on May 28 2022 of new provisions in local consumer law reflecting the Omnibus Directive, online sellers can carry out online pricing comparisons of products, mainly in the context of promotions and in compliance with strict rules. In particular, when advertising a price reduction, the reference price must correspond to the lowest price charged by the seller over the last 30 days.
Europe: Tools to help you prepare for the new Collective Redress Directive
Collective Actions are on the rise. EU Directive (EU) 2020/1828 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC introduces a new EU-wide right for collective actions to be brought on behalf of consumers. The Directive will allow collective actions to be brought by a representative body against businesses if they breach EU laws intended to protect consumers. This includes laws in a broad range of areas such as data protection, travel and tourism, financial services, energy and telecommunications.
We are tracking the implementation of the Directive in each EU Member State and have mapped the current European collective action landscape it is updating to assist businesses with monitoring and assessing the risk of being targeted by a consumer class action in Europe..
UK: New digital markets competition regime is confirmed
On 6 May 2022, the UK Government confirmed its overall approach to the new competition regime for digital markets in the UK. In terms of next steps, we are now awaiting draft legislation, which will be known as the Digital Markets, Competition and Consumer Bill.
This article briefly summarises the key elements of the UK Digital’s Markets Competition Regime (Digital Markets Regime) and provides a comparative table against the EU’s recently adopted Digital Markets Act.
Hong Kong: PCPD puts forward recommended model contractual clauses for cross-border transfer of personal data
The Privacy Commissioner for Personal Data of Hong Kong (“PCPD”) issued a “Guidance on Recommended Model Contractual Clauses for Cross-border Transfer of Personal Data” on 12 May 2022. The New Guidance supplements the “Guidance on Personal Data Protection in Cross-Border Data Transfer” issued by the Office of the PCPD in December 2014, in particular, by introducing two sets of Recommended Model Contractual Clauses, catering for two cross-border data transfer scenarios: 1) from one data user to another data user; and 2) from one data user to a data processor.
Europe: Horizontal regulation designed to unlock the value of data across all economic sectors
A central plank in the EU’s digital scaffolding is the proposal for a Data Act, which sets out new rules regarding who can use and access data in the EU across all economic sectors. The proposed Data Act (2022/0047(COD)), which includes an update to the Database Directive, was presented by the European Commission on 23 February 2022. It takes the form of a horizontal Regulation and is meant to complement the incoming Data Governance Act.
Europe: Russia’s new war on western trade marks
On 5 March 2022, Russia issued its Decree No. 299, which allows local companies or individuals to use the intellectual property rights owned by those from ‘unfriendly countries’ without consent and without paying any compensation. This potentially means that Russian companies can use registered intellectual property rights without a valid licence and will avoid having to pay damages for infringement in the courts, leaving these ‘unfriendly countries’ with essentially no intellectual property protection within the boundaries of Russia. This is of particular interest seeing as those ‘unfriendly countries’, in which there are currently 48, are defined as those who have issued sanctions against Russia in connection with the war in Ukraine – a definition that covers many western countries, including the UK, the US and the EU.
News & Events
Luxury Law Summit Europe: Our team hosts a panel on Fashion & Gaming, and is named Luxury Law Firm of the Year for the second year running
Members of our Luxury, Fashion & Retail team recently attended the Luxury Law Summit Europe, which took place at the British Museum in London.
As sponsors of the Summit we were delighted to be part of a fantastic line-up of high profile speakers exploring global trends in luxury. Our panel session, titled “Gaming & E-Sports: A New Runway for Luxury Brands”, was moderated by Bird & Bird Senior Associate, Will Deller, who was joined by Nicola Packer (Fnatic), Maurits Meijboom (PVH Corp.) and Charles Hambro (GEEIQ). The panellists discussed the reasons why luxury brands are collaborating with the gaming industry, and explored the key considerations for brands when scoping out and negotiating such partnerships.
The day ended on a high for the Bird & Bird team at the Luxury Law Awards, where we were thrilled to win the Luxury Law Firm of the Year (International Firm) Award in recognition of our leading expertise in this sector. The Awards are judged by a panel of nine individuals made up of leading luxury GCs, executives, analysts and commentators, who highlighted our impressive legal tech solutions and commitment to ESG as key factors in their decision
Our Retail & Consumer group includes experts in the luxury sector across each of our international offices. If you would like to speak to one of our team-members and find out more about our experience working with luxury businesses, please get in touch.
Women in Tech powered by Bird & Bird: In conversation with legal leaders in tech
Women in Tech powered by Bird & Bird is delighted to announce the launch of our Legal Leaders podcast series.
In this series, we hear from a variety of legal leaders who are doing pioneering work in the Tech & Comms sector. We hear about their personal journeys, their motivations to start a career in the tech industry, the skills a legal leader needs to make a real impact in tech, and some of the key barriers and challenges for lawyers from unrepresented groups.
For further information, please contact:
Graeme Payne, Partner, Bird & Bird