Welcome to the
In this edition we report on the CMA's investigation into certain fashion retailers for possible greenwashing,
In this issue:
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Advertising and marketing
- Regulatory
- Trade marks
Advertising & marketing
CMA investigates certain fashion retailers for green claims
The CMA has announced that it is scrutinising eco-friendly and sustainability claims made by various retailers about their fashion products, including clothing, footwear and accessories. This is part of the CMA's investigation into potential greenwashing in breach of consumer protection law.
Specifically, the CMA is considering if the retailers are:
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using statements and language that are too broad and vague and may create the impression that their eco ranges of clothing are more environmentally sustainable than they actually are.
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using environmental criteria to select products for their eco ranges that are lower than consumers might reasonably expect, given their descriptions and overall presentation. For example, some products may contain as little as 20% recycled fabric.
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adding some items to their eco ranges which do not actually meet their environmental criteria.
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giving consumers inadequate information about products in their eco ranges, for example by not stating what the fabric is made from.
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making misleading statements about fabric accreditation schemes and standards, for example by not being sufficiently clear about whether the accreditation applies to particular products or to the firm's wider practices.
The CMA has emphasised that it is at the initial stage of its investigation, and so it should not be assumed that any business under investigation has broken consumer protection law.
For more information, see here and here.
For more information, see here and here.
Challenge to HFSS rules for cereals fails
It is also worth noting that both the Welsh and Scottish governments are planning similar (but not identical) rules around HFSS promotions. It looks like there may be some divergence in restrictions across the
For more information, see here, here and here.
Regulatory
Online Safety Bill delayed
The
For more information, see here and here.
Data Protection and Digital Information Bill introduced to parliament
The Data Protection and Digital Information Bill was introduced to the
In general, a website user must provide consent for a cookie to be used (and the user must be provided with clear and comprehensive information about the purposes of the processing), subject to certain exceptions, eg if a cookie is "strictly necessary" to provide a service. The Bill introduces new exceptions where there is a low risk to people's privacy, eg if cookies are used to collect information for statistical purposes aimed at improving the service. However, a user will still have to have the chance to object or opt out.
In terms of direct marketing, under the
Organisations should track the Bill's progress to plan for changes that need to be made so that they can carry on complying with
For more information, see here and here.
ASA and CMA responses to DCMS Committee report on influencers published
The DCMS Committee has published the responses it has received from the ASA and the CMA to its report on influencer culture.
The Committee had suggested that the CAP Code require virtual influencers to be watermarked. In response, the ASA advised that it can only regulate such accounts when they are being used for advertising purposes. It also said that there is no evidence of advertising-related harm from virtual influencers and it can pursue brands and platforms.
The DCMS report suggested including influencer posts within the scope of the CAP Code even if they are not "controlled" by the brand. The ASA said that it did not want to inappropriately regulate editorial or sponsorship content. It also said that it interprets "control" very widely anyway, so it considers almost all complaints about influencer advertising. However, the ASA will look at this further.
The ASA also referred to its response to the government's consultation on its Online Advertising Programme in relation to its powers.
It rejected the suggestion that its guidance about enhanced disclosure for adverts targeted at children should form part of the CAP Code. However, it said that it will review its guidance on child brand ambassadors before the end of 2022. It emphasised that child safeguarding concerns are outside its scope.
The CMA considered the DCMS Committee's concerns about the risks of AI-driven monitoring and highlighted the work of the
For more information, see here.
Trade marks
EU Intellectual Property Office issues guidance on registering trade marks for virtual goods and NFTs
Brand-owning businesses, particularly those with products, services or real estate that might readily feature in a digital form in online games and virtual worlds, are increasingly putting in place specific trade mark strategies to protect and exploit their brands in these new arenas. Rather than just relying upon existing registrations in trade mark classes that relate to the "real world", they are looking additionally to register their marks in classes that might be appropriate when applied to digital/virtual goods or services relating to them. For virtual goods this has typically been in Class 9 (which covers software and computers amongst many other things) and for services relating to virtual goods this is often in Class 41 (which includes entertainment services) or 42 (which includes designing of software).
The EU Intellectual Property Office (EUIPO) has recently issued a newsflash about how it will handle applications for EU Trade Marks relating to virtual goods and non-fungible tokens (NFTs). This confirms that "virtual goods are proper to Class 9 because they are treated as digital content or images", which is good news for those who have already been using Class 9 in this way. But the EUIPO also says that it will be requiring such applications to specify not just "virtual goods" but a more specific indication of the type of goods in question, for example "downloadable virtual goods, namely, virtual clothing".
By extension, when it comes to NFTs the EUIPO's approach is to say that the NFTs themselves are just tokens which "authenticate" digital items that are linked to or attached to the token. The EUIPO will not register marks in Class 9 relating to NFTs unless the type of digital item that it authenticates is specified. This approach is also going to be reflected in the 2023 edition of the Nice Classification (which is the global guide to what each trade mark Class contains) - Class 9 will then expressly include "downloadable digital files authenticated by non-fungible tokens".
When it comes to the classes to use for services relating to virtual goods and NFTs, the EUIPO says these will be "classified in line with the established principles", i.e. it feels that the existing classes already do the job. For services relating to virtual goods in a broadly entertainment, gaming or recreational environment Class 41 seems likely to be appropriate, but other classes may be relevant depending upon the service environment - for example aspects of the "metaverse" relating to workplaces and commerce would presumably need to consider Class 35 which broadly covers services relating to advertising, business, management and office functions.
For more information, see here and here.
Cadbury the chocolate company has for many years been in a running battle with its competitor Nestlé over trade mark protection for the colour purple that Cadbury uses on its Dairy Milk products. Registrations that it had previously gained had to be abandoned after various court rulings that its colour mark had not been represented with sufficient certainty or precision on the register. In particular, the
In its most recent attempt to regain
Cadbury appealed to the
For more information, see here.
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