China Accedes to the Hague Convention and Now Allows for International Design Filings

Chinese flag on China mapOn February 5, 2022, China acceded to Hague System for the International Registration of Industrial Designs. The Hague provisions will become effective in China on May 5, 2022. China has been negotiating such accession for a few years, and it was partly anticipated by certain measures of harmonization introduced with the latest amendment to the patent law in 2019, for example, the extension of a design patent duration from 10 to 15 years. Continue Reading

UK Regulator Ramps Up Action Against Greenwashing

Following the Competition and Markets Authority’s (“CMA“) publication of the Green Claims Code (as discussed in our earlier blog), the UK regulator is now moving forward with its greenwashing investigation, currently focusing on the fashion industry, with additional industries expected to be reviewed in future. Continue Reading

ASA Goes ‘Ad for Ad’ Against Non-Compliant Influencers

Brands and agencies are responsible for ensuring that influencer behaviour on social media complies with ad disclosure rule. The Advertising Standards Authority (ASA) has introduced a novel approach to sanctioning influencers who consistently fail to disclose ads on their Instagram accounts. Earlier this month, the ASA announced that it will take out ads of its own against six influencers, who despite previous warnings, have repeatedly failed to improve their ad disclosures in line with advertising rules. The ASA’s ads will alert consumers to the influencers’ failure to properly disclose their ads and will be targeted at the very same audiences that the social media personalities seek to influence.

The ASA has been paying close attention to influencers’ ad disclosures for some time now. As we previously noted, the ASA published its influencer monitoring report in March last year. The report found that only 35% of UK ads masquerading as genuine social media posts were clearly labelled and identifiable as sponsored content / paid for ads. The ASA has subsequently created a ‘name and shame’ webpage listing non-compliant influencers. Those listed have repeatedly failed to clearly disclose ads on their social media posts and have failed to provide or uphold assurances that they would become compliant. Named influencers remain on the webpage for three months and are subject to enhanced monitoring spot-checks.

The ASA’s CAP Code is clear that marketing communications must be obviously identifiable as such. This is often achieved by prominently including the label ‘#ad’ in social media posts. The regulator does not like use of “#spon” or “#affiliate”. The ASA’s new targeted ads mark an escalation in sanctions against non-compliant influencers. Further sanctions are also being considered by the ASA, including referral to statutory enforcement bodies such as trading standards or the Competition and Markets Authority or collaboration with platforms to remove non-compliant influencers’ content.

As we recently reported, the crackdown on misleading influencer practices is a global trend. In the US the Federal Trade Commission is taking action against big names regarding fake reviews and failures to disclose endorsements. The regulator is threatening to impose financial penalties and is being generally more active in the Biden administration.

Now is the time for brands and agencies to review influencer contracts, policies and advertising practices in the UK, EU and US with urgency. Failure to comply is potentially serious, resulting not just in brand damage and banned ads, but criminal prosecution and fines are now very much in play. For support on these issues contact Carlton Daniel, partner and Global Chair of our Advertising, Media and Brands industry group.

Product Piracy? Zero Tolerance!

Major Product Facility of Counterfeiters Raided in China by Global SPB Team

The global trade in counterfeit and pirated goods in 2019 amounted to nearly USD 464 billion. Trade in counterfeit goods is not only a threat to public governance by fueling organized crime and terrorism but harms the business of nearly every industry. Also, it is often a significant threat to the health and safety of consumers and to the reputation of brands. Continue Reading

An International Drama Over the Maradona Heir’s Right to Use Their Dad’s Name

The heirs of Argentinian soccer super star, Diego Maradona, as well as a John Doe identified only by an IP address, have been sued for trademark infringement based on their use of the name “Maradona.” The suit was filed on January 13, 2022, and is just another episode in an ongoing struggle over the rights to the likeness and image of Diego Maradona. Continue Reading

Once Again, the ITC Finishes the Year with a Flurry of New Complaints

In January 2021, I noted that the U.S. International Trade Commission (ITC) saw a flurry of new complaints filed in the second half of 2020, particularly in November and December. See here. A similar pattern emerged at the end of 2021, culminating with eight Section 337 complaints filed between December 15 – 31, 2021. Continue Reading

The USPTO Again Extends the Fast Track Program for COVID-Related Inventions

On January 3, 2022, the US Patent & Trademark Office (USPTO) announced an extension of the modified COVID-19 Prioritized Examination Pilot Program. Compliant requests filed on or before March 31, 2022, will be accepted.

We covered this modified Pilot Program in our post three months ago, and we covered the original program in prior posts (here and here). The USPTO’s notice published in September extended the Pilot Program to December 31, 2021, and removed the limit on the number of applications that could receive prioritized examination. The current notice now extends the program for three additional months. Continue Reading

Payment Terms in France: Updated Sanctions by the Regulator

Non-French companies need to pay attention to the French Payment Terms Regulations when paying (or being paid by) any French company. On December 2, 2021, the French regulator in charge of investigating and sanctioning noncompliance with the French payment terms regulation, the “DGCCRF,” published a “Review of the sanctions taken by the DGCCRF in the first half of 2021 and publication of guidelines relating to the determination of sanctions“. Continue Reading

UK Regulator Issues New Guidance on In-Game Advertising

What is the UK advertising regulator’s position on the costs of mystery items, bonus time, and levelling up? Several platforms urgently need to change their game mechanics to comply with new rules. Continue Reading

Are All the Terms in Your Standard Terms and Conditions Incorporated?

A recent High Court decision in the case of Blu-Sky Solutions Limited (“Blu-Sky”) v Be Caring Limited (“BCL”) has put terms and conditions into the spotlight. The case has highlighted the importance of making sure that any onerous terms in your standard terms and conditions are clearly brought to the attention of the other party if you want to rely on the term. In this case, Blu-Sky sued BCL, a social care provider, for cancellation charges (£180,000 plus VAT) under a contract relating to the supply of a mobile network service following the cancellation of an order form by BCL. Continue Reading

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