CLARE’S LEGAL LAIR CLARE’S LEGAL LAIR
FMCG News’ resident lawyer, Clare Thomas, is here every issue to make sure you stay on the right side of the legal track when operating in the industry
As this is the first column of the New Year, I wanted to take this opportunity to wish all the readers a prosperous 2013 and highlight some significant legal issues that FMCG businesses need to be aware of this year.
BRAND NAME DOMAINS The Generic Top Level Domain (gTLD) program greatly expands the existing number of 22 Top Level Domains, such as .com or .gov, to include almost any word or name. Last year, brands were offered the opportunity to apply for a new gTLD. Due to the evaluation process we haven't felt the impact of this as of yet, but the new domains are expected to go live this summer. The list of domain names that have been applied for is available and it is advisable for all brand owners to review the list. It could be that someone has applied for a new brand domain representing their brand or trademark, so
businesses will need to consider their options to protect any intellectual property rights. There is still time to object, and the deadline for all formal objections is 13 March 2013. All objections received will move through a dispute resolution process, which will take approximately five months to resolve in most
circumstances and the initial fee for filing an objection (exclusive of any legal fees) is US $10,000. Given these high costs, it will be interesting to see how many legal rights objections are filed.
The creation and designation of new gTLDs has been a hot topic over the last few months and brand owners need to be alive to this change and set up a monitoring programme to uncover any cybersquatters, whilst developing a registration and opposition strategy which manages the risks posed by new gTLDs in a cost-effective way.
CONSUMER
RIGHTS DIRECTIVE The Consumer Rights Directive aims to standardise consumer protection across Europe to ensure transparency for a range of transactions, including pre- contractual information for distance and off-premises contracts. In addition, it requires express consent for additional payments and bans excessive charges for use of debit/credit cards and for contacting customer service lines. The overall deadline for the Directive to be incorporated into national law is December 2013, with the law coming into force from June 2014. However, the Government has already fast tracked the payment surcharge ban, which will come into force on 6 April 2013. The Government will respond to the BIS consultation on implementing the Directive in March 2013. Consumer brands will need to be aware of the consultation, as
the harmonisation of consumer protection law may create an opportunity for brands to increase cross-border and distance trade which brands may wish to capitalise on. It is anticipated that the Government will implement the Directive through the proposed Consumer Bill of Rights. Businesses and consumers would benefit from a simplified and consolidated regime, rather than a piecemeal approach to consumer law. The Government is also due to respond to this consultation in the Spring, so it's one to keep an eye on.
PLAIN PACKAGING And finally, as detailed in the last column, plain tobacco packaging is one to watch for 2013. Last year, the High Court in Australia declared the Tobacco Plain Packaging Act 2011 as constitutional, which meant tobacco companies had to remove all branding apart from the name of the brand from cigarette packaging before 1 December, 2012.
While the changes in Australia don't directly set a precedent for courts in other countries, the data, which becomes available from Australia in the near future, may affect the UK Government's view on this topic if the data confirms that plain packaging does have measurable health benefits. Tobacco companies and brand owners alike will be eagerly watching to see the outcome, as this evidence could have a significant impact on whether plain packaging could be enforced for other products, such as alcohol and fatty foods.
Clare Thomas is Partner at law firm Addleshaw Goddard LLP, where she heads up the firm’s food and drink team. For more information, visit
www.addleshawgoddard.com.
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