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Retail Annual Conference Focused on international retail Antony Gold, Eversheds LLP 23 September 2011

Annual Retail Conference, London - 23 September 2011

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Page 1: Annual Retail Conference, London - 23 September 2011

Retail Annual Conference

Focused on international retail

Antony Gold, Eversheds LLP

23 September 2011

Page 2: Annual Retail Conference, London - 23 September 2011

From evolution…

Page 3: Annual Retail Conference, London - 23 September 2011

…to revolution

Page 4: Annual Retail Conference, London - 23 September 2011

Dark Ages

Year Dot

InnovationFrom bartering

1900

1960

1995

2010

60

35

15

Middle Ages

Degree ofInnovation

Page 5: Annual Retail Conference, London - 23 September 2011

InnovationFrom bartering To buying in bulk, selling in ones

Dark Ages

Year Dot 1900

1960

1995

2010

60

35

15

Middle Ages

Degree ofInnovation

Page 6: Annual Retail Conference, London - 23 September 2011

InnovationFrom bartering To buying in bulk, selling in onesTo artisan shops in markets

Dark Ages

Year Dot 1900

1960

1995

2010

60

35

15

Middle Ages

Degree ofInnovation

Page 7: Annual Retail Conference, London - 23 September 2011

Innovation General merchandisers – Self-service

Dark Ages

Year Dot 1900

1960

1995

2010

60

35

15

Middle Ages

Degree ofInnovation

Page 8: Annual Retail Conference, London - 23 September 2011

Innovation General merchandisers – Specialist chains

2010

Dark Ages

Year Dot 1900

1960

1995

2010

60

35

15

Middle Ages

Degree ofInnovation

Page 9: Annual Retail Conference, London - 23 September 2011

Innovation e-Commerce

2010

Dark Ages

Year Dot 1900

1960

1995

2010

60

35

15

Middle Ages

Degree ofInnovation

Page 10: Annual Retail Conference, London - 23 September 2011

Innovation m-Commerce

2010

Dark Ages

Year Dot 1900

1960

1995

2010

60

35

15

Middle Ages

Degree ofInnovation

Page 11: Annual Retail Conference, London - 23 September 2011

The last 20 years

Page 12: Annual Retail Conference, London - 23 September 2011

The last 20 yearsKey changes

Key trends

• Changes in space

• Consolidation

• Supply chain

• Consumer technology

Retailer perspective

• Power passing from manufacturer to retailer to customer

• From location to brand

• From limited opening hours to open all hours

Page 13: Annual Retail Conference, London - 23 September 2011

The present

Page 14: Annual Retail Conference, London - 23 September 2011

Drivers for a different approach to Consumers/Citizens

14Copyright © 2010

Social Networks

Page 15: Annual Retail Conference, London - 23 September 2011

Retail under threat - 1

15Copyright © 2011

Page 16: Annual Retail Conference, London - 23 September 2011

Retail under threat - 2

16Copyright © 2011

Page 17: Annual Retail Conference, London - 23 September 2011

Retail under threat - 3

17Copyright © 2011

Page 18: Annual Retail Conference, London - 23 September 2011

Retail under threat - 4

18Copyright © 2011

Page 19: Annual Retail Conference, London - 23 September 2011

Predictions for the future

A huge restructuring of retail space

Price inflation

Sustainable operating model

Sourcing rethought

Localism

The relentless growth of the supermarkets

The shopping experience will be the differentiator

Mass customisation

Many fascia brands will disappear

Sustainable products

Internationalisation

Retail will become a more recognised career choice

Cross-channel retailing

A generational change

Fast supply chain

Page 20: Annual Retail Conference, London - 23 September 2011

The next 20 years Widespread, seamless cross-channel retailingKey trends

• Consumer technology

• Access to information at no cost

Power shift

• From store location to customer location

• From retailer sets prices to customer checks price at point of purchase

Page 21: Annual Retail Conference, London - 23 September 2011

The next 20 years Customers as designers

Key trends

• Manufacturing technology

• „I don‟t want that one‟ (personalisation on demand)

Power shift

• From „buy what I sell‟to „I‟ll create your design‟

Page 22: Annual Retail Conference, London - 23 September 2011

Stores reinventedA unique customer experience

• To browse

• To play with and sample products

• To gather information

• To order

• To pick up what you have already ordered

Page 23: Annual Retail Conference, London - 23 September 2011

How to succeed Hyper-personalisation

Key trends

• Retail brand independent of location

• Customer analytics on an increasingly rich data set

• Highly personalised interaction

Power balance

• Retailer insights on individual customer versus information consumers have

• Customer service

Page 24: Annual Retail Conference, London - 23 September 2011

The Social Media revolution

Page 25: Annual Retail Conference, London - 23 September 2011

25Copyright © 2011 Accenture All Rights

Page 26: Annual Retail Conference, London - 23 September 2011

On the move -Consumers require joined up

platforms, devices, and experiences.

Page 27: Annual Retail Conference, London - 23 September 2011

Real estate issues when expanding into Europe and beyond

Gareth Ashfield, Eversheds LLP

23 September 2011

Page 28: Annual Retail Conference, London - 23 September 2011

Global Perspective

on Retail

PRESENTED BY:

MARK BURLTON

Partner, Retail Services

Cushman & Wakefield LLP

September 2011

Page 29: Annual Retail Conference, London - 23 September 2011

29

GLOBAL ECONOMY

RETAILING TRENDS

CROSS BORDER ACTIVITY

CONCLUSION

A G E N D A

Page 30: Annual Retail Conference, London - 23 September 2011

GLOBAL ECONOMY

Page 31: Annual Retail Conference, London - 23 September 2011

31Global Economy

GLOBAL ECONOMY is in the early

stages of recovery

CONSUMERS are feeling more

confident with their own balance

sheet and are starting to spend again

Page 32: Annual Retail Conference, London - 23 September 2011

32

Source: Cushman & Wakefield Research, International Monetary Fund

Global Economy

EUROPEAN UNION

$16.2 Trillion

U.S.

$14.7 Trillion

CHINA

$5.9 Trillion

JAPAN

$5.5 Trillion

UK

$2.3 Trillion

INDIA

$1.5 Trillion

BRAZIL

$2.1 Trillion

SIZE OF THE MARKET

Page 33: Annual Retail Conference, London - 23 September 2011

33

SIZE OF MARKET

Source: Cushman & Wakefield Research, U.S. Bureau of Economic Analysis, OECD, Moody’s Analytics

Global Economy

The U.S. is still the largest

retail market in the world

Private Consumption

Billions, $US Dollars

Page 34: Annual Retail Conference, London - 23 September 2011

34

REAL GDP GROWTH 2009-2012

Source: Cushman & Wakefield Research, U.S. Bureau of Economic Analysis, OECD, Moody’s Analytics

Global Economy

The tale of two markets –

mature markets and

emerging marketsY-o-Y %Change

Page 35: Annual Retail Conference, London - 23 September 2011

35

REAL CONSUMER SPENDING GROWTH 2010-2012

Source: Cushman & Wakefield Research, U.S. Bureau of Economic Analysis, OECD, Moody’s Analytics

Global Economy

Emerging Markets are leading the growth in

global consumer spending – with an appetite

for luxury and recognizable Western brands

Y-o-Y %Change

Page 36: Annual Retail Conference, London - 23 September 2011

36Global Economy

Source: Cushman & Wakefield Research

STOCK MARKETS AND RETAIL SALES 2006-2011

The stock market has

proved to be a leading

indicator of retail sales

Stock Market

(Y-o-Y %Change)

Retail Sales

(Y-o-Y %Change)

Stock Market

(Y-o-Y %Change)

Retail Sales

(Y-o-Y %Change)

Stock Market

(Y-o-Y %Change)

Retail Sales

(Y-o-Y %Change)

Page 37: Annual Retail Conference, London - 23 September 2011

37Global Economy

Source: IMF, Fitch, Moody’s, Standard & Poor’s

FISCAL DEFICITS AND DEBT

Negative sovereign ratings actions have

moved beyond Ireland and Greece

Dec 2010 Jan 2011 Feb 2011 Mar 2011 Apr 2011 May 2011 Jun 2011 Jul 2011

Caa1/

CCC

Greece

Japan

AA-

BB+

Aa2

A- A3/BBB-

Baa3/

BBB+

Baa1/

BBB-USA

AAA

AA-

Italy

A+

AA-

B

AA+

Rating placed on negative outlook

Rating downgrade(s)

Spain

B1/BB-

Aa2

AA+

Ireland

Portugal

Belgium

AA+

A+

Baa1

Aug 2011

AAA

Aa3

Page 38: Annual Retail Conference, London - 23 September 2011

RETAILING TRENDS

Page 39: Annual Retail Conference, London - 23 September 2011

39Retailing Trends

SPENDING PATTERNS are changing

for mature and emerging markets

TECHNOLOGY is becoming a bigger part

of consumer purchasing

RETAILERS are changing footprints

Page 40: Annual Retail Conference, London - 23 September 2011

40Retailing Trends

0.550.53

0.45 0.45

United States France Italy Germany

0%

10%

20%

30%

40%

50%

60%

Source: Booze & Co. 2011

PERCENT of CONSUMERS SELF-IDENTIFYING AS “SPEND SHIFTER” 2011

Shopping for “needs” not “wants” will dominate retailing going forward.

Self-identified “spend shifters” cut across ages in mature markets

Page 41: Annual Retail Conference, London - 23 September 2011

41

Source: Bain & Company

Retailing TrendsWORLDWIDE LUXURY GOODS CONSUMPTION 2011

Emerging markets will continue to drive

the luxury segment globally in 2011

Page 42: Annual Retail Conference, London - 23 September 2011

42Retailing Trends

Source: Cushman & Wakefield Research, U.S. Census Bureau

INTERNET AND CATALOG SALES AS A PERCENTAGE OF U.S. TOTAL SALES 1992-2010

Share of internet and catalog

sales in the U.S. is accelerating

similar to Moore’s Law

Page 43: Annual Retail Conference, London - 23 September 2011

43Retailing Trends

Source: Cushman & Wakefield Research, JP Morgan

$160B$211B

$273B

$352B

$429B

$482B

$572B

$681B

$821B

$963B

GROWTH OF E-COMMERCE 2004-2013

E-commerce is growing faster

outside of the U.S.

Page 44: Annual Retail Conference, London - 23 September 2011

44

Mobile commerce

(M-commerce)

will play a dominant

role in E-commerce

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010*

0

10

20

30

40

50

60

70

80

90

100

Pe

r 1

00

in

ha

bit

an

ts

Mobile cellular telephone subscriptions

Internet users

Fixed telephone lines

Mobile broadband subscriptions

Fixed broadband subscriptions

*Estimates

Source: ITU World Telecommunication/ICT Indicators Database

Retailing TrendsGLOBAL INFORMATION / COMMUNICATION TECHNOLOGY 2000-2010

Page 45: Annual Retail Conference, London - 23 September 2011

45

Source: Cushman & Wakefield Research, World Bank, Facebook

Retailing TrendsSOCIAL MEDIA AND POPULATION 2011

If Facebook was a country, it would be

the third largest country in the world

CHINA: 1.3 billion

INDIA: 1.2 billion

FACEBOOK: 600 million

U.S.: 310 million

INDONESIA : 240 million

BRAZIL: 200 million

Page 46: Annual Retail Conference, London - 23 September 2011

46Retailing Trends

Retailers are changing their footprint to drive

profitability

Polarisation

Flight to quality

Saturation in domestic

markets

Quality of adviceLessons from first

movers

Page 47: Annual Retail Conference, London - 23 September 2011

47Retailing Trends

ECONOMY is recovering and consumer

spending is on the rise

SPENDING PATTERNS

have changed

TECHNOLOGY will continue to

affect the way people make

buying decisions and purchases

RETAIL REAL ESTATE formats and

locations will continue to evolve

CONCLUSION

Page 48: Annual Retail Conference, London - 23 September 2011

CROSS BORDER ACTIVITY

Page 49: Annual Retail Conference, London - 23 September 2011

49Cross Border Activity

THE CURRENT RECOVERY

has created two tier

economies in the mature

and emerging markets

RETAILERS’ search for sales

in both is accelerating cross

border activity

Page 50: Annual Retail Conference, London - 23 September 2011

50

RENTAL RATE GROWTH, GLOBAL SHOPPING LOCATIONS, JUNE 2010 – JUNE 2011

Source: Cushman & Wakefield Research Main Streets Across the World 2011

Cross Border Activity

Growth driven by fierce competition for the

most high-profile locations and aggressive

expansions on behalf of retailers

Page 51: Annual Retail Conference, London - 23 September 2011

51

Source: Cushman & Wakefield Research Main Streets Across the World 2011

GLOBAL RENTAL RATE GROWTH OVER FIVE YEARS

Cross Border Activity

Global retail markets have rebounded, despite the

fragile economic recovery in many countries

Page 52: Annual Retail Conference, London - 23 September 2011

52

Source: Cushman & Wakefield Research Main Streets Across the World 2011

Cross Border ActivityTOP GLOBAL SHOPPING LOCATIONS

U.S. and Asia-Pacific markets dominate the list

of World’s most expensive shopping streets

Page 53: Annual Retail Conference, London - 23 September 2011

53Cross Border Activity

U.S. RETAILERS EXPANDING

Page 54: Annual Retail Conference, London - 23 September 2011

54Cross Border Activity

EUROPEAN RETAILERS EXPANDING

Page 55: Annual Retail Conference, London - 23 September 2011

55Cross Border Activity

ASIA PACIFIC RETAILERS EXPANDING

Page 56: Annual Retail Conference, London - 23 September 2011

56

666 Fifth Avenue

New York

Source: Cushman & Wakefield Research Main Streets Across the World 2011

Cross Border ActivityTOP LOCATIONS IN THE AMERICAS

Page 57: Annual Retail Conference, London - 23 September 2011

57Cross Border Activity

Source: Cushman & Wakefield Research Main Streets Across the World 2011

TOP LOCATIONS IN EUROPE

Leicester Square

London

Page 58: Annual Retail Conference, London - 23 September 2011

58Cross Border Activity

Source: Cushman & Wakefield Research Main Streets Across the World 2011

TOP LOCATIONS IN ASIA PACIFIC

Pedder Building

Central Hong Kong

Page 59: Annual Retail Conference, London - 23 September 2011

59Conclusion

ECONOMY is recovering and consumer

spending is on the rise

SPENDING PATTERNS have changed

TECHNOLOGY will continue to change the

way people make buying decisions and

purchases

RETAIL REAL ESTATE formats and

locations will continue to evolve

RETAIL REVIVAL is shaping new

cross border strategies

Page 60: Annual Retail Conference, London - 23 September 2011

THANK YOU - Q&A

cushmanwakefield.com

Page 61: Annual Retail Conference, London - 23 September 2011

HR issues for 2011/2012

Shrinkage in employment legislation?

Prospects for change

Audrey Williams, Eversheds LLP

23 September 2011

Page 62: Annual Retail Conference, London - 23 September 2011

Modernising UK Law

• The review aims to:

– “ensure businesses feel more confident about hiring people”;

– “support and encourage parties to resolve disputes earlier”;

– Address concerns that weak (and “vexatious”) cases are plaguing the system;

– ensure employment tribunal cases “move more swiftly to conclusion”

• Prompted by huge (56%) increase in the number of employment tribunal claims (236,100 in 2009-10)

Page 63: Annual Retail Conference, London - 23 September 2011

Resolving disputes in the workplace

• Early conciliation:

– Shortened version of ET1 to go direct to ACAS rather than ET within statutory time limit;

– Reduction of 12,000 ET claims per year estimated;

– Statutory period of one month for ACAS conciliation;

• The provision of information

– including a statement of loss as required information

• Formalising offers to settle

– tribunal to be able to increase or decrease the amount of any award where parties have unreasonably rejected an offer of settlement;

Summary of proposals

Page 64: Annual Retail Conference, London - 23 September 2011

Modernising our tribunals

• Strike outs:– To be made at any hearing (not just PHRs) or without

hearing; and• Deposit orders:

– Similarly to be made at any hearing or without hearing;

– Doubling maximum level of the order to £1,000; and• Costs:

– No intention to move to general costs recovery policy; BUT

– Current cap on costs awards to be doubled to £20,000; and

Tackling weaker cases

Page 65: Annual Retail Conference, London - 23 September 2011

Resourcing the system effectively

• Consultation on how best to implement a fees mechanism is due in Spring 2012

Businesses taking on staff and meeting obligations• Extending the qualification period for unfair dismissal:

– From one to two years (3,700 - 4,700 fewer claims)

• Financial penalties:

– For employers found to have breached rights;

– Between £100 and £5,000 to be based on the total amount of the award made by the ET

Charging fees

Page 66: Annual Retail Conference, London - 23 September 2011

Agency Worker Regulations 2011

• Gold Plated ? Amendments ?

• Reduce reliance

• Closer monitoring of usage and record keeping

• Commercial renegotiation

• Clearer pay and job structures

Page 67: Annual Retail Conference, London - 23 September 2011

HR issues for 2011/2012

International and EU issues: retirement and

gender proposals

Audrey Williams, Eversheds LLP

23 September 2011

Page 68: Annual Retail Conference, London - 23 September 2011

• Jordan and Saudi Arabia

– Employer retirement age: 60 for men; 55 for women but employment may continue if both parties consent.

• United Arab Emirates

– Retirement driven by work visa approval. Historic position is 60 years. Recent amendments mean visa renewals will be provided in usual way until age of 65.

– May be possible to get approval to work longer e.g. up to 70 where there is a skills shortage.

Doing with/without mandatory retirement

Differences of approach

Page 69: Annual Retail Conference, London - 23 September 2011

• France

– Compulsory retirement permitted from age 70

– Termination is not automatic, ie employer has to give notice of the retirement

– Employees aged 65-69 can be offered retirement but cannot be forced to retire against their wishes

Doing with/without mandatory retirement

Differences of approach

Page 70: Annual Retail Conference, London - 23 September 2011

• Germany– Employees who reach state pension age retire

automatically as long as this is provided for in a contract of employment or collective agreement

– State pension age = 65• Will gradually rise to 67 by 2029, beginning in 2012

– No need to 'justify' the retirement– Ending of employment is automatic so no need to run any

process

Doing with/without mandatory retirement

Differences of approach

Page 71: Annual Retail Conference, London - 23 September 2011

• Great Britain

– From 6 April 2011, limited scope for retirement ; default of 65 repealed – have to justify.

– Northern Ireland:

• Same as GB at present

• Not yet clear whether/when will change

Belgium

• Compulsory retirement not permitted; but

• Notice required to dismiss is reduced to 6 months at 65

Doing with/without mandatory retirement

Differences of approach

Page 72: Annual Retail Conference, London - 23 September 2011

• Mandatory retirement permitted at/above a particular age– The Netherlands

• possible to terminate employment on the basis of the employee reaching the state pension age

• State pension age is currently 65– might be increased to 66 or 67 (proposal for new

legislation pending)

• Termination on grounds of age for younger employees only possible if can be justified.

Doing with/without mandatory retirement

Differences of approach

Page 73: Annual Retail Conference, London - 23 September 2011

• Mandatory retirement permitted at/above a particular age

– Spain

• As a general rule, mandatory retirement is permitted at 65 if provided for by the applicable Collective Bargaining Agreement

– Sweden

• Employer can compel retirement at 67

• The employer can not make the employee retire at a younger age, except where full disability pension available

Doing with/without mandatory retirement

Differences of approach

Page 74: Annual Retail Conference, London - 23 September 2011

• Mandatory retirement legal; no minimum age

– Ireland

• Employee must have reached employer‟s normal retirement age for the job

– South Africa

• Employer may dismiss if employee has reached the normal or agreed retirement age

• Standard practice for employment contracts to contain a provision prescribing the retirement age.

Doing with/without mandatory retirement

Differences of approach

Page 75: Annual Retail Conference, London - 23 September 2011

0

5

10

15

20

25

30

35

%age female presence on Boards*

* Boards of larger listed companies, 2009/2010

Female presence on Boards in Europe

EU average is only 11%

Page 76: Annual Retail Conference, London - 23 September 2011

• UK:

– No legislation, pressure through Lord Davies‟ report setting a 25% target for female Board presence by 2015 for FTSE 100, public target setting by the FTSE 350, greater gender disclosure and transparency

• Germany:

– No national legislation but renewed discussion on the possibility of introducing legal quotas

• France:– Companies have until:

• 1 January 2014 to make their Boards 20% female• 1 January 2017 to make their Boards 40% female

– It applies to listed companies and companies with an average headcount, for 3 consecutive years, of 500 permanent employees and a net turnover of at least €50,000,000

Female presence on Boards

The role of legislation in speeding up progress

Page 77: Annual Retail Conference, London - 23 September 2011

• Spain:

– Since 2007, larger quoted companies have 8 years to attain 40% females on their boards. Not mandatory until 2015

– A CGC requires an explanation where few female directors, plus how it will be corrected

• Norway:

– Has a quota – 40% of boards must be women

– Sometimes criticised as being problematic (are women appointed on merit or to make up numbers?)

Female presence on Boards

The role of legislation in speeding up progress

Page 78: Annual Retail Conference, London - 23 September 2011

• Belgium:

– No legislation

– A CGC requires attention to be paid to diversity

– Current legislative proposals to force 30% quota

• Italy and Austria:

– Quota legislation under discussion

• EU initiative:

– A 2010 warning from the EU Commission: companies have a year to sort out gender board imbalances, failing which it may legislate

Female presence on Boards

The role of legislation in speeding up progress

Page 79: Annual Retail Conference, London - 23 September 2011

Equality Act (EA):

• Positive action in recruitment and promotion provision, public sector equality duty in force

• Dual discrimination provision scrapped

• Consultation on third party harassment

• What about gender pay measures?

– 14 September 2011 Eversheds hosted launch of Voluntary Gender Equality Reporting by Home Secretary Theresa May

Recent government announcementsEquality Act

Page 80: Annual Retail Conference, London - 23 September 2011

HR issues for 2011/2012

Flexibility for all – the government agenda

Audrey Williams, Eversheds LLP

23 September 2011

Page 81: Annual Retail Conference, London - 23 September 2011

Shared parental leave

• Consultation on Modern work placed published on 16 May 2011. The government proposes to:

– Extend right to request flexible working to all (timescale for introduction to be confirmed)

– Provide more flexibility for men and women to share parental leave between them

– Current intention is for new parental leave measures to come into force in 2015

• extend the right to request flexible working to all employees;

Page 82: Annual Retail Conference, London - 23 September 2011

Final Remarks

and Questions?

Page 83: Annual Retail Conference, London - 23 September 2011

Consumer Protection

Consumer Protection from Unfair Trading

Regulations 2008 – an update

Elizabeth Hyde Eversheds LLP

23 September 2011

Page 84: Annual Retail Conference, London - 23 September 2011

Consumer Protection

• in force on 26 May 2008

• harmonises law across EU

• overhauls UK legislation

• applies to commercial practices

• general principle of fair treatment

Consumer Protection from Unfair Trading

Regulations 2008 – avoiding the pitfalls

Page 85: Annual Retail Conference, London - 23 September 2011
Page 86: Annual Retail Conference, London - 23 September 2011

Consumer Protection

Misleading Actions (Regulation 5)

Actions which mislead by:

• containing false information or deceiving (or being likely to deceive) the average consumer;

• where the false information or deception relates to specific information set out in the Regulations;

• And where the average consumer takes (or is likely to take) a different decision as a result

Misleading Practices

Page 87: Annual Retail Conference, London - 23 September 2011

Consumer Protection

Misleading Actions (Regulation 5)

Relevant information:

• Main characteristics

• existence of the product

• the price or the manner in which the price is calculated

• the existence of a specific price advantage

Misleading Practices

Page 88: Annual Retail Conference, London - 23 September 2011

Main characteristics

• availability

• composition of product

• method/date of manufacture

• quantity of product

• geographical origin

Page 89: Annual Retail Conference, London - 23 September 2011

Consumer Protection

• What is „misleading omission‟

Practices which:

• omit or hide material information; or

• provide it in an unclear/ambiguous manner; and

• the average consumer takes (or is likely to take) a different decision as a result)

Misleading Practices

Page 90: Annual Retail Conference, London - 23 September 2011

Consumer Protection

• What is the „Average Consumer‟

• reasonably well informed, reasonably observant and circumspect

Misleading Practices

Page 91: Annual Retail Conference, London - 23 September 2011
Page 92: Annual Retail Conference, London - 23 September 2011

Consumer Protection

What are aggressive practices?

CPR prohibit practices which:

• by harassment, coercion or undue influence;

• significantly impair freedom of choice/action; and

• cause the average consumer to take a different decision

Aggressive Practices

Page 93: Annual Retail Conference, London - 23 September 2011

Consumer Protection

Factors suggesting an aggressive practice

• timing, location, nature or persistence

• threatening/abusive behaviour

• exploitation of specific circumstances

Aggressive Practices

Page 94: Annual Retail Conference, London - 23 September 2011
Page 95: Annual Retail Conference, London - 23 September 2011

Consumer Protection

• Schedule 1

• 31 specific practices deemed unfair in all the circumstances

Banned Practices

Page 96: Annual Retail Conference, London - 23 September 2011

Consumer Protection

Commercial practice is unfair if:

• it is not professionally diligent; and

• it materially distorts, or is likely to materially distort the economic behaviour of the average consumer

General Prohibition

Page 97: Annual Retail Conference, London - 23 September 2011

Consumer Protection

• fines

• time limits

• individual liability

• defence

Offences

Page 98: Annual Retail Conference, London - 23 September 2011

Consumer Protection

Offence due to

• mistake;

• information;

• act/default of another;

• accident; or

• cause beyond control

and due diligence applied

Due Diligence Defence

Page 99: Annual Retail Conference, London - 23 September 2011

Consumer Protection

Avoiding the pitfalls

Systems and procedures

Training of staff

Audits

Monitoring complaints

Page 100: Annual Retail Conference, London - 23 September 2011

Consumer Protection

Case law update

Page 101: Annual Retail Conference, London - 23 September 2011

Consumer Protection

• Snow-covered Lapland village

• ‘Where dreams really do come true’

• ‘it would light up those who most loved Christmas’

• ‘where we have prided ourselves on attention to detail’

• ‘We can assure you of an absolutely magical scene’

Lapland New Forest Park

Page 102: Annual Retail Conference, London - 23 September 2011

Lapland New Forest Park

Page 103: Annual Retail Conference, London - 23 September 2011

Lapland New Forest Park

Page 104: Annual Retail Conference, London - 23 September 2011

Lapland New Forest Park

Page 105: Annual Retail Conference, London - 23 September 2011

Consumer Protection

• Victor Mears, 67 and Henry Mears, 60

• £30 per ticket – 42,000 tickets sold

• £1m advance ticket sales

• Action taken by Dorset Trading Standards

• Charges of misleading public

Lapland New Forest Park

Page 106: Annual Retail Conference, London - 23 September 2011

Consumer Protection

• 13 months imprisonment

• Large number of people affected

• Target was families with children in the run up to Christmas

• High sums of money involved

• Judge said they showed, not one „scintilla of remorse’

Lapland New Forest Park

Page 107: Annual Retail Conference, London - 23 September 2011

Consumer Protection

• January 2011

• „Sale‟

• Products never offered at higher price

• Eight offences

• £12,000 plus £2,625 costs

Powys v Rebo Limited

Page 108: Annual Retail Conference, London - 23 September 2011

Consumer Protection

• First High Court decision

• Scratch card gave the consumer the impression they had won a prize

• OFT applying for an order to prevent sale

• Misleading actions and omissions

• Breach paragraph 31of Schedule 1

The Office of Fair Trading v Purely Creative

Limited

Page 109: Annual Retail Conference, London - 23 September 2011

Consumer Protection

• Paragraph 31 of Schedule 1

• „Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either –

• (a) there is no prize or other equivalent benefit, or

• (b) taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost’.

The Office of Fair Trading v Purely Creative

Limited

Page 110: Annual Retail Conference, London - 23 September 2011

Consumer Protection

Court said..

• The requirement to pay for a nominal rate call to collect prize was not misleading

• minimal cost e.g. postage stamp or nominal rate call or money that did not reach the promoter's pocket

• promoter must not receive payment to off-set the cost of the prize

The Office of Fair Trading v Purely Creative

Limited

Page 111: Annual Retail Conference, London - 23 September 2011

Consumer Protection

• Average Consumer

• reasonably well informed, reasonably observant and circumspect

• ‘consumers who take good care of themselves should be protected, rather than ignorant, careless or hasty consumers’

• Court ruled that whether the Average Consumer would read all the terms and conditions will depend on the circumstances

The Office of Fair Trading v Purely Creative

Limited

Page 112: Annual Retail Conference, London - 23 September 2011

Consumer Protection

Ofgem Investigations

Doorstop Selling

• Concern of mis-selling

• Pressure

• Many companies suspending doorstop sales

Page 113: Annual Retail Conference, London - 23 September 2011

Consumer Protection

Dealing with the Regulators

•Trading Standards powers to obtain documents

•Offence of obstruction

•Privilege

•Time limits for prosecutions

Page 114: Annual Retail Conference, London - 23 September 2011

Final Remarks

and Questions?

Page 115: Annual Retail Conference, London - 23 September 2011

Competition law and land agreements

The new regime

Adam Collinson, Eversheds LLP

23 September 2011

Page 116: Annual Retail Conference, London - 23 September 2011

Outline

• The new regime in a nutshell

• A more detailed look at the key prohibition

• Risks (and opportunities)

• Where will the prohibition bite?

• Assessing whether a land agreement is likely to be caught

• Quick case studies

• Questions

Page 117: Annual Retail Conference, London - 23 September 2011

The new regime in a nutshell

• Restrictions in agreements relating to land are now subject to normal UK competition rules on restrictive agreements

• The rules catch not just new agreements but pre-existing ones as well

• Restrictions in these agreements could be void and unenforceable where they constrain competition on a market (and there may be other consequences besides)

• In turn that may lead to changes in the nature of the trading environments enjoyed by retail outlets

Page 118: Annual Retail Conference, London - 23 September 2011

Background

• Chapter I Competition Act 1998 (which prohibits restrictive agreements) was originally rendered inapplicable to many types of land agreement by the Land Agreements Exclusion Order (LAEO)

• The 2006/8 Competition Commission investigation into grocery retailing led to a review of the exclusion

• The LAEO was repealed with effect from 6 April 2011

• The OFT issued guidelines in March 2011 summarising how competition law can apply to land agreements in the UK– http://www.oft.gov.uk/shared_oft/consultations/land-

agreements/land-agreements-guideline.pdf

Page 119: Annual Retail Conference, London - 23 September 2011

Chapter I Competition Act 1998

CHAPTER I PROHIBITS:

• Agreements between “undertakings”

• Which have as their object or effect

• The appreciable restriction of competition

• On a relevant market

• And have no redeeming features which would justify their exemption

Page 120: Annual Retail Conference, London - 23 September 2011

Consequences of infringement

• Infringement carries the risk of (among other things)

– Investigation and fines (no fine may be imposed in respect of the period prior to 6 April 2011)

– Disqualification of directors

– Actions for damages from those who suffer loss as a result of the agreement

• But in most cases

– Unenforceability will be the primary risk (or opportunity)

Page 121: Annual Retail Conference, London - 23 September 2011

Where will it bite?

• Unlikely to bite

– Normal property clauses (service charge, alterations, repairs, hours of use, etc)

– Restricted user clauses (unless the landlord is also active in the tenant‟s trading market)

• Might bite

– Exclusivity arrangements, restricted user clauses (where the landlord is also active in the relevant market), freehold restrictive covenants

• Certain to bite

– Price fixing provisions

Page 122: Annual Retail Conference, London - 23 September 2011

Assessing land agreements (1)

• Relevant markets in which competition takes place

– Product / service scope

– Geographic scope

• Rationale for restriction

• Appreciability of restriction / foreclosure effect

– Market structure / market shares

– Duration of restriction

– Availability of other suitable premises nearby from which to undertake the relevant activity (special characteristics required / planning restrictions) ?

Page 123: Annual Retail Conference, London - 23 September 2011

Assessing land agreements (2)

• Enforcement priorities in relation to land agreements mean OFT will focus on

– agreements between competitors

– agreements where there is market power (a market share above 30%)

• OFT will assume that market share is less than 30% (and market power doesn‟t exist) wherever there are four or more independent retail fascias (including the beneficiary of any restriction) operating on a market

• But this doesn‟t preclude aggrieved companies pursuing matters independently

Page 124: Annual Retail Conference, London - 23 September 2011

Assessing land agreements (3)

• NB the position can change over time so agreements can slip in and out of infringement (need to monitor?)

• If a restriction of competition is not appreciable there is no infringement

• If it is appreciable the agreement may still merit exemption if

– The agreement produces efficiencies

– There is no less restrictive way of attaining those efficiencies

– A fair share of the benefits flowing from the agreement will accrue to consumers

– The agreement does not eliminate competition

Page 125: Annual Retail Conference, London - 23 September 2011

Quick Case Studies

Page 126: Annual Retail Conference, London - 23 September 2011

Case Study One

• You are legal counsel for a successful department store

• The business lets some space to concessions of branded products which compete with certain products the department store sells

• The current draft of the lease contains a clause requiring the concessionaire

– only to offer reduced prices when the department store is having a sale (and at those times not to sell at prices more than 5% lower than the prices of equivalent products in the department store)

– at all other times to sell at full price

Page 127: Annual Retail Conference, London - 23 September 2011

Case Study Two

• You are legal counsel at a leading operator of wine bars which has an existing bar in the Greek Street area of Leeds city centre (a very popular eating and drinking area)

• Other operators are keen to get a position in this area

• The business wants to sell the wine bar and impose a restrictive covenant against future use as a wine bar

Page 128: Annual Retail Conference, London - 23 September 2011

Case Study Three

• You are legal counsel at a chain of electrical stores

• The business is keen to gain entry to a relatively new but very successful out-of-town retail park

• The landlord has refused you a lease to the soon to be vacant unit claiming the terms of another lease prevent him letting to another electrical store

Page 129: Annual Retail Conference, London - 23 September 2011

Underlying concepts to remember

• Agreements containing price fixing restrictions will always be unlawful and problematic

• As regards other agreements

– Restrictions of competition not restrictions of activity are what is important

– To assess these restrictions focus on

• Relevant markets in which competition takes place (product / service and geographic)

• Structure of those markets (market shares and number and identity of other competitors)

• Rationale for / justification of restriction

• Market power / extent of foreclosure

Page 130: Annual Retail Conference, London - 23 September 2011

Any questions?

Page 131: Annual Retail Conference, London - 23 September 2011

Final Remarks

and Questions?

Page 132: Annual Retail Conference, London - 23 September 2011

Dealing with the social media explosion

The HR dimension

James Bull, Eversheds LLP

23 September 2011

Page 133: Annual Retail Conference, London - 23 September 2011

Issues involving the use of social media in

recruitment

• Advertising vacancies

- websites

- using smart phones to attract interest from target audiences

• Reducing bureaucracy and saving costs

• Potential to exclude social groups

• Discrimination

Page 134: Annual Retail Conference, London - 23 September 2011

Issues involving the use of social media

during the life of the employment relationship

• Performance management – productivity

- excessive personal use of internet or emails via work computers or smart phones, including use of Facebook and Twitter

• Conduct

- derogatory comments about the employer or customers & bringing the company into disrepute (Taylor v Somerfield and Preece v JD Wetherspoons)

Page 135: Annual Retail Conference, London - 23 September 2011

Issues involving the use of social media

during the life of the employment relationship

• Conduct

- bullying and harassment of fellow colleagues

- discriminatory remarks (Gosden v Lifeline Project Limited)

Page 136: Annual Retail Conference, London - 23 September 2011

Risks of IT misuse and abuse by employees

• Damage to reputation

- derogatory statements

- bringing the business into disrepute

• Security

- breach of the Data Protection Act

- disclosure of confidential information

• Tribunal claims

- discrimination

- third party harassment

Page 137: Annual Retail Conference, London - 23 September 2011

Employees duties to the employer in terms of

confidential information

• Implied duties

- to act honestly towards the employer

- to disclose to the employer all information relevant to its business

- not to make secret profits from the employer‟s business

- to respect the confidentiality of the employer‟s business information

- not to compete with the employer‟s business

Page 138: Annual Retail Conference, London - 23 September 2011

Employees duties to the employer in terms of

confidential information

• Express duties

- contractual clauses

• Whistle blowing

Page 139: Annual Retail Conference, London - 23 September 2011

The need for clear internal policies on the

use of social media forums

• Preserving good business relationships and promoting a positive business image

• Having a clear policy

- restricting the use of employer‟s IT resources

- restricting the use of smart phones during work

- restricting employee use of confidential information

- prohibiting bullying, harassment and discrimination

Page 140: Annual Retail Conference, London - 23 September 2011

The need for clear internal policies on the

use of social media forums

• Having a clear policy

- prohibiting negative comments about the employer, its customers, suppliers and employees

- making clear to employees that social media messages may reflect on their employment

• Training

- awareness and understanding of the policy

• Disciplinary procedures

Page 141: Annual Retail Conference, London - 23 September 2011

Final Remarks

and Questions?

Page 142: Annual Retail Conference, London - 23 September 2011

Dealing with the social media explosion

Reputational Risk & Advertising Issues

Andrew Terry, Eversheds LLP

23 September 2011

Page 143: Annual Retail Conference, London - 23 September 2011

What do we mean by social media?

• A “conversation” v “one-way traffic”

• Wide ranging:

– Social and business networking sites

• e.g. Facebook, LinkedIn, MySpace, Bebo

– Blogs: a “web log”

• e.g. Twitter, Blogspot, Square Space

– Digital media sharing

• e.g. YouTube, Flickr, Slideshare

– Wiki

• BUT much overlap and rapidly changing

• AND your own website

Page 144: Annual Retail Conference, London - 23 September 2011

Areas of corporate risk

• Another means of corporate communication BUT lack of control, brevity and casual use increase reputational risk:

– defamatory comments

– misleading advertising

– disclosure of private information

– employee misconduct

• Manage by:

– adopting appropriate internal policies

– reviewing regularly

– devoting adequate resources

– complementing established marketing

Page 145: Annual Retail Conference, London - 23 September 2011

Third party comments

• Monitor third party sites for damaging comments and IP infringement

• Monitor sites/content under your control (even though you may lose “intermediaries” defence)

• Identify and communicate with disaffected customers

• Internal response team

• Legal intervention

– Defamation law

– Notice-and-take-down procedures

– Privacy rights

Page 146: Annual Retail Conference, London - 23 September 2011

Defamation

• Wide protection – any statements which make readers think worse of a person or organisation

• Publication

• Balance of power in Claimant‟s hands

• Defences available (justification, fair comment, qualified privilege)

• Aim – vindication (damages, apology, retraction, costs)

• Clear potential for vicarious liability

Page 147: Annual Retail Conference, London - 23 September 2011

Notice-and-take-down procedures

• Defamation actions: author, editor, publisher

– Identifying the author

– Likelihood of relief against bloggers etc

– Position in meantime

• Role of ISPs and other “intermediaries”

– E-Commerce Regs 2002 (Reg.17-19) -defence for mere conduit, caching or hosting if no actual knowledge

– s. (1) Defamation Act - if not an author, publisher etc and no reason to believe defamatory

– May lose protection if have editorial control

• Put on notice (including for IPR infringers)

Page 148: Annual Retail Conference, London - 23 September 2011

Privacy rights

• Right to respect for private and family life, home, health and correspondence – Article 8 ECHR

(1) Is it private information?

(2) Is there a reasonable expectation of privacy?

(3) Is there a genuine public interest?

• “Private Information”

– emotional relationships / family / friends

– job performance

– business information

• Injunctions v “Super Injunctions”

Page 149: Annual Retail Conference, London - 23 September 2011

ASA : online remit extension

“Advertisements and other marketing communications by or from companies, organisations or sole traders on their own websites, or in other non-paid-for space online under their control, that are directly connected with the supply or transfer of goods, services, opportunities and gifts”

• Primary intent is to sell something though not necessarily immediately

• Has it appeared in the same or very similar form in third party space?

• New sanctions – enhanced name and shame, removal of adverts

Page 150: Annual Retail Conference, London - 23 September 2011

ASA : user generated content

• UGC is content created by private individuals –outside remit

• But UGC falls within remit if adopted and incorporated within own marketing communications

• Customer reviews – inside or outside remit?

• Content excluded from remit extension:

– press releases and other public relations material

– editorial content

– natural listings

– heritage advertising

Page 151: Annual Retail Conference, London - 23 September 2011

Content of social media policies

• who writes the copy?

• tone of company “voice”?

• what is the posting process from inception to publication?

• how often do you update or post?

• who monitors and how often?

• policing in moderation (abuse v negative comments)

• correcting mistakes quickly

• ensure enforcement is uniform

Page 152: Annual Retail Conference, London - 23 September 2011

Final Remarks

and Questions?

Page 153: Annual Retail Conference, London - 23 September 2011

Using Social Media as a Promotional Tool

Mary Kelly, Eversheds LLP

23 September 2011

Page 154: Annual Retail Conference, London - 23 September 2011

Social media trends across markets

Page 155: Annual Retail Conference, London - 23 September 2011

Social media: a few facts

500,000,000

The number of global users Facebook reports they have registered

Social media advertising spend will increase 400% by the

year 2014

- Forrester

One out of every five minutes online is spent on social

media related sites

- Nielsen

Half of the 29 million Facebook subscribers in

the UK check their page at least once a day

- PWC

It took Facebook 3 years to reach

worldwide audience of 50 million - and another four years to reach over

half a billion

Facebook valuedat $50 billion

- PWC

Page 156: Annual Retail Conference, London - 23 September 2011

Retail marketplace pressures and the use of social media

Social media opportunities

Page 157: Annual Retail Conference, London - 23 September 2011

Some examples of retailers‟ use of social media

Page 158: Annual Retail Conference, London - 23 September 2011

Some examples of retailers‟ use of social media (Continued)

Page 159: Annual Retail Conference, London - 23 September 2011

What do consumers want from digital marketers?

…Create value for consumers… keep it exciting

…one of the main reasonscustomers site for „friending‟a corporate Facebook page isto get access to special offersand sales discounts.

- E&Y Reaching Consumers GloballyMay 2011

Page 160: Annual Retail Conference, London - 23 September 2011

Running promotions on social media…

…Terms and conditions

Page 161: Annual Retail Conference, London - 23 September 2011

Running promotions on social media…

• Gambling Act 2005 (different regime in Northern Ireland)

• Consumer Protection from Unfair Trading Regulations 2008

• UK Code of non-broadcast Advertising, Sales Promotions and Direct Marketing (“CAP Code”)

… however, regulations are not harmonised throughout the EU

…Regulations and Codes of Conduct still apply

Page 162: Annual Retail Conference, London - 23 September 2011

Social media platform terms and conditions…

…What you need to be aware ofFacebook

Promotions Guidelines

• Release and disclaimer of Facebook liability

• Methods of entry using a Facebook platform

• Facebook cannot be used as a means to notify winners of a promotion

• Promotion cannot use Facebook functionality, eg „Like‟ button as a voting mechanism

• Third party advertisements prohibited

• Must not incorporate any functionality that identifies which users visit a page/ promotion

You Tube

• Must provide participant ability to read rules of entry before they enter a competition/ promotion

• Entry to a promotion must be free/no money requirement

• Promotions must indemnify YouTube in respect of any contests/promotions run on YouTube

Twitter

• Possible to use „Retweet‟ as a condition of entry

• Must provide a link to promotion terms and conditions

Page 163: Annual Retail Conference, London - 23 September 2011

Social media promotions

Case study: Timberland Trail of Heroes

Page 164: Annual Retail Conference, London - 23 September 2011

Social media promotions (Continued)

• Part of Timberland‟s 2011 “Nature Needs Heroes” marketing strategy - its biggest environmentally focused marketing campaign

• Geocache contest run through Facebook and website

• Collaboration between Timberland, ad agency and Groundspeak - a Geocaching community website

• Run in 6 European cities at the same time (London, Milan, Paris, Madrid, Berlin and Brussels)

• Consumers register themselves as members of the geocaching community and log individual caches

Timberland Trail of Heroes - Features

Page 165: Annual Retail Conference, London - 23 September 2011

Social media promotions (Continued)

• Ensure the mechanics of the promotion are clearly described and comply with all relevant social media platform terms and conditions

• Where time and location are key to the promotion ensure it is consistent in each time zone

• Be clear as to what data is to be provided by a participant, how it is to be used and that appropriate consents are provided

• If complex, test it out on a smaller restricted number of users. Timberland trialled the promotion with the blogging communities

• Get country specific legal review

Timberland Trail of Heroes - Lessons

Page 166: Annual Retail Conference, London - 23 September 2011

Social media promotions (Continued)

• Fashion retailer Facebook quiz wanted to share results instantaneously on Facebook page. Site already built by agency. Led to wasted costs.

Examples

Page 167: Annual Retail Conference, London - 23 September 2011

Social media promotions (Continued)

• Understand and participate in the development of your social media and promotional strategy

• Engage with your marketing and social media colleagues early in respect of the mechanics and terms of promotions

• Ask lots of questions as to how promotions will operate - regulations still apply to social media in the same way as more „traditional‟ promotions

• Your contribution may save time, money and reputation - and enhance the use of social media as a promotional tool

Conclusion

Page 168: Annual Retail Conference, London - 23 September 2011

Final Remarks

and Questions?

Page 169: Annual Retail Conference, London - 23 September 2011

Google AdWords

The current state of play

Kaisa Mattila, Eversheds LLP

23 September 2011

Page 170: Annual Retail Conference, London - 23 September 2011

Google AdWords

• Continuing “hot topic” among retailers

• Evolving area of law – several recent decisions

• AdWords = allows traders and businesses to purchase keywords to trigger the display of a „sponsored link‟ advertisement whenever an internet user searches for the selected keyword.

• Controversy: registered trade marks freely available for any advertiser to purchase as keywords

Introduction

Page 171: Annual Retail Conference, London - 23 September 2011

• Distinguish NATURAL results from ADWORDS

Page 172: Annual Retail Conference, London - 23 September 2011

Google AdWords

• … for online advertisers?– Capture Internet traffic interested in similar products /

services

– Communicate sales of branded products

• … for trade mark owners?– Diversion of trade = lost sales

– Customer confusion & counterfeits

– Loss of prominence & higher advertising costs

• … for Google?– Huge revenue source – 97% of US$28bn in 2010

What is their significance…

Page 173: Annual Retail Conference, London - 23 September 2011

Google AdWords

• Brand owners: use of trade marks as AdWords amounts to trade mark infringement both by the advertiser and by Google

– Use of identical sign (usually)

– In the course of trade

– In relation to goods/service which are usually identical to those protected by TM registration

– Also possible dilution & free riding on reputation of well-known brand

• Distinguish between TRIGGER ONLY use and AD TEXT use

The trade mark law angle

Page 174: Annual Retail Conference, London - 23 September 2011

• TRIGGER ONLY USE vs. AD TEXT USE

Page 175: Annual Retail Conference, London - 23 September 2011

Google AdWords

• ‘Use’

– Google is not “using” TMs by offering them for sale as advertising keywords or by displaying the advertisements = no infringement

– Advertisers, however, do “use” the TMs in the course of trade in relation to products / services when selecting them as AdWords so capable of infringing.

• Infringement by advertisers

– Only if damages the „core function‟ of the trade mark as a guarantee of trade origin (in other words, is liable to lead to confusion)

• Cases: Louis Vuitton Malletier SA v Google France; re-affirmed in Die

BergSpechte Outdoor Reisen v Gunter Guni & ors (both March 2010)

The current state of play

Page 176: Annual Retail Conference, London - 23 September 2011

Google AdWords

• Potential damage “if the advertisement does not enable normally informed and reasonably attentive internet users, or enables them only with difficulty, to ascertain whether the goods or services referred to by the ad originated from the trade mark owner or an undertaking economically connected to it”

– “Normally informed?” / “Reasonably attentive?”

– “Only with difficulty”?

• A question of fact to be determined by national courts on a case-by-case basis

• Little guidance from the European Court

The current state of play

Page 177: Annual Retail Conference, London - 23 September 2011

Google AdWords

• Potential liability for Google if not exempt under E-Commerce Directive as Information Service Provider!

– Would need to be acting as a mere information storage/transfer service with no active role, knowledge or control over the content of the information stored/transmitted on behalf of the end user

• Extent of Google’s involvement a matter for national courts on a case by case basis

– Could be held liable for AdWord use by an advertiser if a brand owner brings unlawful content /activities to Google‟s attention and it fails to act expeditiously to remove that content

– Note: depends on the activity itself being unlawful!

The current state of play

Page 178: Annual Retail Conference, London - 23 September 2011

Google AdWords

• Interflora v Marks & Spencer – Opinion of the Advocate-General of the European Court:

– M&S infringed the Interflora trade mark by purchasing INTERFLORA as an AdWord (Internet users might believe M&S was part of Interflora‟s sales and delivery network given Interflora‟s unusual business model) despite the word not appearing in the ad text

– AdWord use is also capable of:

• diluting the reputation of trade marks to become generic terms; and

• taking unfair advantage of their reputation

provided that the TM appears in the actual ad text.

Likely developments

Page 179: Annual Retail Conference, London - 23 September 2011

Google AdWords

• Advertisers: unclear scope of what could amount to infringement – increased caution, particularly with ad text use

• Warning sounded to Google re: ISP liability

Steps to take:

– “Test searches”

– Report unlawful/confusing use to Google

– Report any counterfeiters to Google

– Write to advertiser?

– Exercise caution when using AdWords yourself!

The way forward

Page 180: Annual Retail Conference, London - 23 September 2011

Google AdWords

• Does not prevent the selection of TMs as keywords in the EU/EFTA

• Will only investigate ad text in response to brand owners‟ complaints and will only carry out a “limited investigation” into whether the keyword combined with the ad text is confusing as to the origin of the goods being advertised

• If satisfied that there is potential confusion, will take down the advert

Parallels to decided cases: focus on confusion

Possible impact of forthcoming Interflora decision?

Google’s current AdWords policy

Page 181: Annual Retail Conference, London - 23 September 2011

Google AdWords

Thank You!

Kaisa Mattila

Solicitor, Intellectual Property Group

[email protected]

Any questions?

Page 182: Annual Retail Conference, London - 23 September 2011

Final Remarks

and Questions?

Page 183: Annual Retail Conference, London - 23 September 2011

IT Procurement & Retail

Bruce Cairns & Mike Gladwin, Eversheds LLP

23 September 2011

Page 184: Annual Retail Conference, London - 23 September 2011

10 Key Contracting PointsNo. 1 - What are the deliverables?

•specifications

•tender documents and requirements specifications

•change control

Page 185: Annual Retail Conference, London - 23 September 2011

10 Key Contracting PointsNo. 2 - What rights do you get?

•software licences

•group usage

•contractors

•types of licence

Page 186: Annual Retail Conference, London - 23 September 2011

10 Key Contracting PointsNo. 3 - When will you get it?

•project plans

•milestones

•liquidated damages

•walk away rights

Page 187: Annual Retail Conference, London - 23 September 2011

10 Key Contracting PointsNo. 4 - How much will it cost?

•link payment to milestones and acceptance

•fixed charge?

•avoid time and materials

•avoid cost elements “to be agreed”

•rate card

•avoid uncapped increases

Page 188: Annual Retail Conference, London - 23 September 2011

10 Key Contracting PointsNo. 5 - Acceptance tests

•agreeing test criteria

•customer participation

•end to end and modular

•integration with customer systems

Page 189: Annual Retail Conference, London - 23 September 2011

10 Key Contracting PointsNo. 6 - What if it goes wrong?•damages

•termination

•liquidated damages

•service credits

•liability caps

Page 190: Annual Retail Conference, London - 23 September 2011

10 Key Contracting PointsNo. 7 - Customer Group issues

•what is the current group?

•dealing with changes to the group

•assignment

•outsourcing service providers

Page 191: Annual Retail Conference, London - 23 September 2011

10 Key Contracting PointsNo. 8 - Data protection

•your risk as data controller

•contractual obligations on data processor

•outside EEA?

•liability caps for breaches

Page 192: Annual Retail Conference, London - 23 September 2011

10 Key Contracting PointsNo. 9 -Service descriptions & service levels

•support and maintenance

•clear descriptions

•clear service levels

•bronze or platinum?

Page 193: Annual Retail Conference, London - 23 September 2011

10 Key Contracting PointsNo. 10 - Unravelling the deal

•exit planning

•software licences post termination

•ongoing support

•replacement services

•has the supplier got you by the throat?

Page 194: Annual Retail Conference, London - 23 September 2011

Final Remarks

and Questions?

Page 195: Annual Retail Conference, London - 23 September 2011

Annual Retail Conference Data Protection Update – Issues for 2011/12

Cookies – Have you got the right recipe?

Elaine Fletcher, Eversheds LLP

23 September 2011

Page 196: Annual Retail Conference, London - 23 September 2011

What‟s New?

• Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011

• Storing information on user‟s terminal and accessing it

• Mainly but not just „cookies‟

• Information does not have to be „personal‟ or „identifiable‟

• Still have to comply even if anonymous, aggregated or statistical

• Additional to Data Protection Act 1998

Page 197: Annual Retail Conference, London - 23 September 2011

What has changed?

• Clear and comprehensive information on purpose of cookies

• Pre 26 March 2011 – providing opportunity to refuse them (known as „opt out‟)

• From 26 March 2011 – giving prior consent to use them (known as „opt-in‟)

Page 198: Annual Retail Conference, London - 23 September 2011

What does this mean?

• You have to obtain the user‟s „freely given and specific indication of agreement‟

• Explanations of use of cookies to be clearer, more specific, and more granulated

• Browser settings probably not adequate yet –requires level of explanation and selection beyond current standards

• Repeat consent not required once consent obtained on first website visit, BUT

• New consent for each change of cookie use

Page 199: Annual Retail Conference, London - 23 September 2011

How is consent obtained?

• Pop up boxes

• Acceptance of suitable terms and conditions

• Check out the ICO‟s wording at www.ico.gov.uk

The ICO would like to use cookies to store information on your computer, to improve our website. One of the cookies we use is essential for parts of the site to operate and has already been set. You may delete and block all cookies from this site, but parts of the site will not work. To find out more about the cookies we use and how to delete them, see our privacy notice. [ ] I accept cookies from this site. [Continue]

Page 200: Annual Retail Conference, London - 23 September 2011

What practical steps are needed?

• Engage with e-commerce teams and identify:

– Each and every cookie used – is it deleted when browser closed?

– What each one does – what information is collected, is it identifiably linked?

– Why it is used – site essential cookies vs improved experience/ enhanced service

– Whether the business still needs uses/ needs it

• Review and revise website privacy policies and incorporate consent mechanisms

• Check ICO website for emerging guidance

Page 201: Annual Retail Conference, London - 23 September 2011

Reasons to comply

• ICO‟s usual enforcement powers

• Civil Monetary Penalties now extend to cookie requirements (up to £500k)

• ICO increasingly asking to audit businesses

• Customer confidence

• ICO won‟t enforce for 12 months IF actively trying to comply

Page 202: Annual Retail Conference, London - 23 September 2011

Final Remarks

and Questions?

Page 203: Annual Retail Conference, London - 23 September 2011

The International Management of Disputes

Issues for Retailers

Richard Little, Eversheds LLP

23 September 2011

Page 204: Annual Retail Conference, London - 23 September 2011

Retail: implications of international expansion

• Opportunities abroad in expanding businesses

• Managing business in multiple jurisdictions

• Impact of relevant local laws on effective operations – from start to finish

Page 205: Annual Retail Conference, London - 23 September 2011

Key considerations

• Contractual protections when establishing operations overseas

• Preparation for and termination of contracts

• Strategy and tactics in international dispute resolution

Page 206: Annual Retail Conference, London - 23 September 2011

Laying the Groundwork…..

• Structuring the operation – balancing control, capital and risk

- own branch?

- franchise?

- concession?

- agent/distributor?

• Research relevant jurisdiction – need for approvals/licences

Page 207: Annual Retail Conference, London - 23 September 2011

Contractual Protections

• Ensuring your contract works for you:

- Retaining control over operations

- Ownership of stock and premises

- Termination provisions

- Choice of governing law and dispute resolution clauses

• Effective drafting reduces risk of costly disputes

Anticipating potential risk

Page 208: Annual Retail Conference, London - 23 September 2011

Jurisdiction

• May impact upon choice of structure

- mandatory provisions in certain jurisdictions

• Consider jurisdiction clause in contract

• Specify applicable law

Page 209: Annual Retail Conference, London - 23 September 2011

Principles of Contractual Interpretation

• UK position - Court gives a document its ordinary meaning unless there is a clear mistake on its face. Admissible background evidence limited to factual matrix.

• Contrast other jurisdictions – importance of retaining paper trail of any discussions.

• Ensure tight drafting – use a second pair of eyes for a “sense check”

Page 210: Annual Retail Conference, London - 23 September 2011

Preparing for termination

• Early preparation is key - find out what is happening on the ground

• Issues to consider:

- stock

- premises

- local licences

- employees

• Practical implications

Page 211: Annual Retail Conference, London - 23 September 2011

Terminating contracts

• Importance of clear contractual terms

• Managing an effective exit:

- Know your contract

- Awareness of “on the ground” performance

• Consider relevant applicable law

• Compile any necessary evidence

Page 212: Annual Retail Conference, London - 23 September 2011

Terminating Contracts

• Is pre-action correspondence appropriate?

• Is injunctive relief available?

• Mandatory application of local jurisdiction?

• Consider local law position on disclosure, privilege, confidentiality etc

Page 213: Annual Retail Conference, London - 23 September 2011

Strategy and tactics in international dispute resolution

• Retain appropriate local team

• Project management of disputes

- particular logistical difficulties of working cross-border

• Appropriate use of technology

Page 214: Annual Retail Conference, London - 23 September 2011

© EVERSHEDS LLP 2011. Eversheds LLP is a limited liability partnership.