Archive for the ‘Brands’ Category
Wednesday, June 5th, 2013
The Advertising Standards Authority (ASA) has today banned an advert featuring actress and model Pamela Anderson for ‘depicting women as sexual objects to be lusted after’.
The advertising watchdog upheld complaints about the advert for Crazy Domains.co.uk, a domain name registrar and web hosting provider owned by Dreamscape Networks Ltd, because it ‘gave the impression that [the man] viewed his female colleagues as sexual objects to be lusted after’.
The advert must have seriously crossed a line. Traditionally, the ASA has been quite liberal in its views concerning complaints about advertisements that are alleged to be overly sexualised. It is therefore surprising that the ASA now appears to be taking a rather conservative view in relation to an ad featuring Pamela Anderson. There’s a good chance that the negative adjudication will do little more than fluff the feathers of what appears to now be a “TV hit series” in the promoter’s own words as awareness of the campaign is raised.
Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.
Nina Best
0115 976 6529
nina.best@brownejacobson.com
Tags: advertising, advertising and marketing law, advertising standards authority, ASA, marketing, regulatory law
Posted in Advertising & Marketing, Brands, Regulatory, Retail | No Comments »
Tuesday, June 4th, 2013
The recent case of Utopia Tableware Ltd v BBP Marketing Ltd & Another concerned a fairly straightforward argument of infringement. Utopia makes and sells ‘Aspen’ beer glasses and BBP launched a very similar design in its new ‘Aspire’ range. Utopia accordingly filed for an injunction in the Patents County Court to stop BBP selling its Aspire products.
The injunction was allowed, but it later transpired that some of Utopia’s injunction evidence was fabricated. Two directors of Utopia tampered with emails, signed false witness statements and repeated lies in further statements. Despite BBP later admitting to copying the Utopia design, the court directed the Attorney General to consider the criminal charge of contempt of court. This is highly rare in IP cases, but Birss J felt that Utopia’s dishonesty was such that it amounted to serious contempt.
It goes without saying that you should never lie before the court, but Utopia is a stark reminder of just how important this is for any client.
Daniel Whebell
0121 237 3946
daniel.whebell@brownejacobson.com
Tags: contempt of court, design rights, designs
Posted in Brands, Commercial dispute resolution, Commercial Litigation, Fraud, Intellectual Property | No Comments »
Friday, May 17th, 2013
Alliance Boots and Morrisons have made fresh calls to the Government to reform business rates.
The two retailers made their submissions ahead of the first evidence session on Tuesday for the inquiry into the UK retail sector.
Morrisons said that “steep rises in business rates and lack of certainty in the rate-setting mechanism, are damaging confidence and weighing heavily on investment decisions” – a view which Alliance Boots and many others agree with.
Alliance Boots said that “the most significant challenge to operating successfully on high streets and town centres is business rates”.
Jeweller, F Hinds explained how it had to turn down “several” shops because the rates bill was so high and “often” higher than the rent itself – a situation faced by many SMEs.
We agree that businesses need to continue to lobby government to tackle this issue and hopefully this inquiry will go some way into making the Government realise the effect that the current business rates are having on the high street.
Posted by Sarah Parkinson, who specialises in property development and retail; heads up commercial property development practice, dealing with complex projects and commercial property transactions, including options and development agreements.
Sarah Parkinson
0115 976 6575
sparkinson@brownejacobson.com
Tags: Alliance Boots, business rates, high street, Morrisons, Sarah Parkinson
Posted in Brands, Government, Property, Retail | No Comments »
Friday, May 10th, 2013
This week saw the Global Privacy Enforcement Network co-ordinate the ‘Internet Privacy Sweep’. The sweep involved participating data protection authorities worldwide (including the ICO in the UK) examining the transparency of companies’ websites and apps, and identifying those which may need further investigation or follow up. The participating authorities determined which sites to examine. Canada, for example, planned to visit the few hundred sites most visited by Canadians.
The key questions are:
- does the site have a privacy policy?
- how difficult is it to find information about the site’s privacy practices?
- is contact information for addressing privacy questions and concerns readily available?
- how readable is the information about privacy practices?
The sweep shows a co-ordinated compliance review by data protection authorities. Breach of data protection laws can be expensive and the sweep should incentivise companies to review their policies to ensure they are compliant with the law.
Posted by Emily Daniell
Emily Daniell
0115 976 6535
emily.daniell@brownejacobson.com
Tags: Data Protection, Emily Daniell, Global Privacy Enforcement Network, Internet Privacy Sweep, privacy, websites
Posted in Advertising & Marketing, Brands, Commercial contracts, Consumer contracts, Data Protection, Food & drink, In-house Lawyers, Retail | No Comments »
Friday, May 10th, 2013
It was announced in the Queen’s speech that the Government intends to enact a new Consumer Rights Act.
This act will:
- Expressly cover digital content, including music, films and e-books. Consumers will have rights to compensation if they purchase content which is inaccessible or repeatedly freezes.
- Consolidate consumer rights in one place. Consumer law is currently spread across more than 10 acts and regulations, which arguably makes it difficult for consumers to know their rights.
- Trading standards officers will be given new powers to require businesses to compensate consumers. We anticipate this will make complaints to Trading Standards more frequent.
- Implement recent EU directives, which are intended to harmonise consumer law across the EU.
Clarification on the status of digital content is welcomed, but it remains to be seen if other changes will truly help consumers, or will simply place new burdens on businesses.
We will provide further updates when the act is published in draft form later this year.
Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.
Oliver Sweeney
0115 976 6247
oliver.sweeney@brownejacobson.com
Tags: consumer law, Consumer Rights, digital media, new Consumer Rights Act, oliver sweeney, Queen's speech
Posted in Advertising & Marketing, Brands, Charities, Commercial Litigation, Government, Regulatory, Retail | No Comments »
Thursday, May 2nd, 2013
On 30 April 2013, the Advertising Standards Authority (‘ASA’) published its annual report. This for the first time set out its ‘big five’ regulatory priorities it aims to tackle in the coming year:
- ‘free trials’ that actually cost
- daily deals
- misleading pricing
- misleading testimonials; and
- misleading health claims.
The report reveals that 70% of cases the ASA dealt with last year were about misleading advertising, rather than harmful or offensive advertising. The industry body received 31,298 complaints about 18,990 ads, which led to 3,700 campaigns being changed or withdrawn.
There have been many innovations lately in the fields of consumer and celebrity testimonials via social media, differential and pricing, and daily deals. Businesses engaging in any of the above activities, especially where the marketing approach is edgy, should seek advice before running such marketing, to avoid becoming one of the high profile cases the ASA will be seeking to highlight in its next annual report.
Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.
Oliver Sweeney
0115 976 6247
oliver.sweeney@brownejacobson.com
Tags: advertising standards authority, ASA, misleading adverts, oliver sweeney
Posted in Advertising & Marketing, Brands, Charities, Food & drink, Regulatory, Retail | No Comments »
Thursday, May 2nd, 2013
Booths, a UK based grocery chain, has removed 300 packets of its Whole Hearted Roasted Monkey Nuts from shelves after failing to declare they may contain peanuts.
The Food Standards Agency issued an allergy alert in relation to the nuts, saying that the presence of peanuts had not been declared on the packets. They said “although the packaging was transparent allowing customers to see what was inside, the supermarket had failed to identify peanuts as an allergen on the labels” and that “legislation requires food labels to carry information about any allergens it may contain”. An easy win for the FSA?
In a statement Booths said they have “identified the labelling error and issued a warning to customers”.
You may think it is already obvious that monkey nuts may contain peanuts. But obvious or not, this issue was enough to warrant the product’s removal, and serves as a reminder of the need to consider both hidden and obvious issues when packaging your products.
Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.
Oliver Sweeney
0115 976 6247
oliver.sweeney@brownejacobson.com
Tags: Booths, food labelling, food standards agency, FSA, oliver sweeney, peanut allergy, Whole Hearted Roasted Monkey Nuts
Posted in Advertising & Marketing, Brands, Food & drink, Regulatory, Retail | No Comments »
Thursday, April 25th, 2013
On 23 April 2013, the Government published guidance on cyber-security for small businesses.
The guidance explains what cyber-security risks are, and outlines how businesses can plan, implement and review their cyber security.
According to a recent survey by PwC, the threat of security breaches is at its highest ever level, with 87% of small businesses and 93% of large businesses experiencing a security breach in the last year. The average cost to a small business of its worst security breach was between £35k-£65k; whereas the figure for large businesses was between £450k-£850k. These costs were made up of regulatory fines and compensation, lost assets (including IP), lost business and cash spent to recover and remediate.
These figures, combined with the cost of reputational damage, show just how critical careful cyber security planning and management really is.
Posted by Oliver Laing, who specialises in intellectual property agreements, anti counterfeiting and disputes relating to patents, copyright, trade marks, designs, as well as domain name disputes and reputation management.
Oliver Laing
0115 908 4854
oliver.laing@brownejacobson.com
Tags: cyber crime, cyber security, department for business innovation and skills, oliver laing
Posted in Brands, Data Protection, Fraud, Government, In-house Lawyers, Insurance, Intellectual Property, Litigation, Public Sector, Retail | No Comments »
Wednesday, April 24th, 2013
After lengthy public debate, the Defamation Bill was yesterday passed by the House of Lords. The bill is intended to rebalance defamation laws in favour of freedom of expression.
Some significant provisions introduced include:
- companies must show that a publication has caused, or is likely to cause, substantial financial loss before they can claim
- a defence for website operators if it was not them who posted the statement – provided they cooperate in identifying the statement maker
- an effective limitation period for internet-based publications of one year from their first publication
A proposed amendment which would have prevented companies providing public services from suing in defamation has not been passed. Nor has there been any statutory restriction placed on public bodies funding actions by their employees.
The bill may not fundamentally change the underlying principles of defamation. But claimants will need to take advice, and perhaps consider alternatives (combining legal options and practical options) for successful reputation management.
Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.
Oliver Sweeney
0115 976 6247
oliver.sweeney@brownejacobson.com
Tags: defamation, Defamation Bill, freedom of expression, oliver sweeney
Posted in Brands, Commercial Litigation, Education, Government, In-house Lawyers, Litigation, Public Sector, Retail | No Comments »
Thursday, April 18th, 2013
The Patents County Court has a special costs regime, and costs are only normally recoverable if (a) they would normally be recoverable, (b) they fall within the stage limits, and (c) they fall beneath the cost cap, which for liability trials is £50,000.
Two recent decisions elucidate on this.
In Henderson v All Around the World, the judge said that the £50,000 costs cap can only be departed from in truly exceptional circumstances. Although costs has been assessed below £50,000 in accordance with the stage limits, a CFA uplift and an ATE insurance premium could be claimed above the stage limits and brought the recoverable costs up to the £50,000 cap.
In Azzurri Communications v International Telecommunications, the £25,000 cost cap for a damages enquiry could not be added to the £50,000 liability trial cap if a case concerned liability and quantum.
In short, the £50,000 costs cap is very difficult to avoid, unless there has been an abuse of the court’s process.
Posted by Giles Parsons, who specialises in intellectual property agreements and disputes relating to patents, copyright, trade marks, designs, as well as domain name disputes and reputation management.
Giles Parsons
0121 237 4557
gparsons@brownejacobson.com
Tags: Azzurri Communications v International Telecommunications, costs, Giles Parsons, Henderson v All Around the World, patent, patents county court
Posted in Brands, Intellectual Property, Litigation, Retail, Technology | No Comments »
Monday, April 15th, 2013
Research carried out by Which? found more than 150 own-label products had ‘borrowed’ elements of their packaging from branded competitors.
It found one-fifth of its members had accidently bought an own-brand version of a favourite brand at least once; with a further 18% deliberately buying own-label products because it resembled the branded equivalent.
It’s an offence under Consumer Protection Regulations to promote a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing the product is made by that same manufacturer.
Currently a company needs to persuade a regulator to take enforcement action if this offence has been committed, and the appetite for that has traditionally been low.
There has been lobbying for many years for a private right of redress where this offence has been committed. This research may assist companies in highlighting that it is imperative something is done to plug this gap as brands continue to be exploited.
Posted by Sarah Parkinson, who specialises in property development and retail; heads up commercial property development practice, dealing with complex projects and commercial property transactions, including options and development agreements.
Sarah Parkinson
0115 976 6575
sparkinson@brownejacobson.com
Tags: branding, Brands, consumer protection regulations, misleading consumers, Sarah Parkinson, Which?
Posted in Advertising & Marketing, Brands, Retail | No Comments »
Friday, April 12th, 2013
This week India has confirmed its accession to the Madrid Protocol for International Registration of Trade Marks at WIPO (Madrid system). The Treaty will come into force in India on 8 July 2013.
The Madrid system gives trade mark owners the ability to protect and manage their trade mark portfolio in up to 88 countries plus the European Union with its Community Trade Mark (CTM) by filing just one application. See here for a list of all countries who have already signed up to the Madrid system from Albania to Zambia.
The move will make it easier and more cost-effective for brands to extend their protection to the important Indian market. With the Indian economy expecting to expand by up to 6.7% in the next two years, this is good news for brand owners thinking about extending their business to the Indian market.
Posted by Paula Dumbill, who specialises in non-contentious intellectual property, particularly trade marks and copyright, advising in particular on IP exploitation and collaboration agreements and trade mark portfolio management.
Paula Dumbill
0115 976 6059
pdumbill@brownejacobson.com
Tags: Browne Jacobson LLP, India, Madrid Protocol, Paula Dumbill, Registration of trade marks, trade marks
Posted in Advertising & Marketing, Brands, Food & drink, In-house Lawyers, Intellectual Property, Retail | No Comments »
Tuesday, April 2nd, 2013
Designer and chairman Sir Paul Smith delivered a talk at Nottingham University’s business school recently and spoke of the balance that retailers (and other businesses) need to find in order to succeed.
Paul discussed the requirement to be different and stand out in a world where there is already too much of everything; too many of any given product and too many retailers selling them. Eye-catching window displays and lateral thinking when it comes to shopping experience are part of the picture, but Paul believes that success lies in ensuring a proper balance between the exciting and out-there and the stuff that pays the rent.
This balance, Paul said, has enabled his business to grow organically without taking on large debts. Though we think the difficulty in achieving this balance is shown all too clearly in the recent retail administrations of big names such as Blockbuster, HMV, Republic and Dreams (with HMV reportedly having debt of £345m at the time of its collapse).
Mark Hymers
0115 976 6081
mhymers@brownejacobson.com
Tags: administration, debts, Mark Hymers, Paul Smith, retailers, shopping experience
Posted in Brands, Property, Retail | No Comments »
Tuesday, March 26th, 2013
The Intellectual Property Office (IPO) is encouraging SMEs (small and medium enterprises) to use its recently introduced mediation service to solve disputes between rights holders and others. However, a rights owner should first consult the IPO website as the service cannot deal with all disputes, such as those concerning:
- distinctiveness of a trade mark
- trade mark opposition and invalidation proceedings on absolute grounds
- IPO decisions like refusal of a patent application.
Experienced mediation providers such as CEDR (Centre for Effective Dispute Resolution) and In Place of Strife are already frequently used and the Law Society and Bar Council also provide information on their qualified mediator members.
The scheme aims to reduce SMEs’ costs of dispute resolution, but common issues such as IP right validity or the need for an injunction may limit this. Rights owners will need to carefully consider its suitability and what outcome they want from any dispute resolution procedure. The IPO scheme will have value, but may not provide an alternative to other mediation services or the courts.
Posted by Peter Ellis, who specialises in commercial litigation or dispute resolution; intellectual property disputes e.g. trade marks, copyright, designs issues; breach of contract and claims through interruptions to trade.
Peter Ellis
0115 976 6269
pellis@brownejacobson.com
Tags: Browne Jacobson LLP, CEDR, dispute resolution, mediation, Peter Ellis, SME, UK Intellectual Property Office
Posted in Advertising & Marketing, Brands, Commercial dispute resolution, Commercial Litigation, Data Protection, In-house Lawyers, Intellectual Property, IT Contracts, Licensing | No Comments »
Monday, March 25th, 2013
Google has amended its policy enabling advertisers to choose any trademark term to trigger their advert onto consumers’ screens. In 2008 advertisers needed the owner’s permission to use trademark keywords but in 2010 Google amended its policy allowing retailers unconnected with a trademarked brand to use the trademark in AdWords ads provided they had a loose connection, such as selling the trademarked brands’ products.
This latest change might have followed Google’s success in the Australian High Court where it was found not to have misled or deceived the public by publishing ads in which advertisers used rivals’ names.
The policy states Google will still “investigate and may restrict the use of a trademark within ad text”, but what security does that offer to trademark owners if consumers have already been led to the advert?
This will not stop trademark owners enforcing their rights against advertisers, who should seek advice before choosing keywords and creating ads, especially if they’re intending on using other brands’ trademarks.
Posted by Paula Dumbill, who specialises in non-contentious intellectual property, particularly trade marks and copyright, advising in particular on IP exploitation and collaboration agreements and trade mark portfolio management.
Paula Dumbill
0115 976 6059
pdumbill@brownejacobson.com
Tags: advertising, AdWords, Google, Paula Dumbill, Trademarks
Posted in Advertising & Marketing, Brands, Commercial contracts, In-house Lawyers, Intellectual Property, Retail, Technology | No Comments »
Friday, February 8th, 2013
The EU General Court has dismissed an appeal against the OHIM Board of Appeal’s decision to allow opposition against registration of a figurative mark consisting of the words METRO KIDS COMPANY on the grounds that there is a likelihood of confusion with an earlier trade mark METRO.
The court agreed while the ‘metro’ element of the proposed mark was distinctive the additional wording “kids company est. 1989” was not sufficiently distinctive, the figurative element was mainly decorative and aurally customers would tend to abbreviate the mark to ‘metro’. The word ‘metro’ was considered to be the dominant element of the proposed mark and was similar to the earlier mark, leading to a likelihood of confusion.
Ultimately, this is the right decision. Trade mark owner’s rights ought to be protected against others who attempt to take advantage of an existing mark by adding ‘token’ images or words. When applying for a mark it is important to ensure that the mark is distinctive when considered as a whole.
Lauren Millward
0115 908 4864
lmillward@brownejacobson.com
Tags: European Court, Lauren Milward, Trademarks
Posted in Brands, Intellectual Property, Litigation, Retail | No Comments »
Friday, December 7th, 2012
The High Court has ruled that a shape mark registration for a Scrabble tile was invalidly registered.
The mark was described as “a three dimensional ivory-coloured tile on the top surface of which is shown a letter of the Roman alphabet and a number in the range of 1 to 10”, and was represented as follows:
The court held that the mark was not a sign nor was it capable of being represented graphically with sufficient clarity, precision, intelligibility or objectivity.
Ultimately, this decision is the right one. Without clearly defining the dimensions of the tile, the mark covered all conceivable combinations for an ivory-coloured tile shape with a letter and number on the surface, undoubtedly leading to confusion over the scope of protection of the mark.
By contrast, in Nestle v Cadbury the court held that a mark for the colour purple being the “predominant” colour applied to packaging was sufficiently certain to be capable of registration.
Lauren Millward
0115 908 4864
lmillward@brownejacobson.com
Tags: High Court, Lauren Millward, trade marks
Posted in Brands, Intellectual Property, Licensing, Technology | No Comments »
Wednesday, December 5th, 2012
The Advertising Standards Authority (ASA) has upheld a complaint that images on American Apparel’s website were irresponsible and offensive.
The ASA said the model used on the site looked under the age of 16. Whilst it acknowledged that the poses were not overtly sexual, it considered the images could be seen to sexualise a model who appeared to be a child. Under the advertising rules such action is considered inappropriate and irresponsible.
This isn’t the first time that American Apparel has been on the receiving end of a negative adjudication by the ASA. Last time, the advertising watchdog banned the retailer’s ad campaign after brandishing it “pornographic, exploitative ..and inappropriately sexualis[ing] young women”. Given the sensitive nature of the advertisements, the retailer needs to tread carefully going forward: The ASA has close links with the Office of Fair Trading, a body with bigger teeth than itself. It may decide to refer American Apparel’s behaviour to the Regulator who has more ammunition in its armoury to tackle the arguably irresponsible advertising.
Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.
Nina Best
0115 976 6529
nbest@brownejacobson.com
Tags: advertising, advertising standards authority, nina best, Retail
Posted in Advertising & Marketing, Brands, Fashion & Luxury Retail, Retail | No Comments »
Monday, December 3rd, 2012
Eight leading grocers will sign up to a new set of trading principles which address concerns over special offers and promotions for food and drink, following concerns that shoppers could be confused and misled by the way prices are advertised and promoted. The code sets out the Office of Fair Trading’s (OFT) views on how promotional claims should be used.
With growing pressure on household budgets the OFT is trying to ensure shoppers can trust special offers and promotions are truly value for money.
However, the principles do nothing more than clarify the OFT’s view on how the existing consumer protection laws would be interpreted should promotions that supermarkets run find themselves subject to challenge. Whether the OFT is equipping itself with the necessary tools to take enforcement action against supermarkets remains to be seen. However, all food businesses need to be aware of the code; in particular smaller retailers, who unaware of the code, could find themselves being used as a scapegoat.
Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.
Nina Best
0115 976 6529
nbest@brownejacobson.com
Tags: nina best, office of fair trading, OFT, trading principles
Posted in Advertising & Marketing, Brands, Food & drink, Retail | No Comments »
Thursday, November 22nd, 2012
The Advertising Standards Authority (ASA) has announced new rules providing transparency and choice for consumers around Online Behavioural Advertising (OBA) will be included in its code from 4 February 2013.
The new rules will require notice to be provided to web users in or around the marketing communication delivered by OBA, and choice via an opt out mechanism to prevent users web viewing behaviour from being collected and used for OBA.
The new rules demonstrate this type of marketing practice is fully on regulators’ radar. The more regulators that focus on the topic, the more likely it is that one of the regulators will make an example of a company that is taking advantage of the practice.
The ASA stresses it wants the technique to flourish to the benefit of businesses and consumers as well as increasing transparency in relation to it. However, if the practice is fully transparent its value could be diminished so it may serve to stamp the practice out inadvertently.
Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.
Nina Best
0115 976 6529
nbest@brownejacobson.com
Tags: advertising standards authority, Browne Jacobson LLP, marketing communications, nina best, Online Behavioural Advertising, websites
Posted in Advertising & Marketing, Brands, Fashion & Luxury Retail, Retail | No Comments »
