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August 2012
The Olympics and Legal Implications of High Profile Events
July 2012
Hedging, LIBOR and Why Canadian Banks Are Setting Benchmarks
June 2012
May 2012
Employee Incentives and Share Option Schemes
April 2012
Hotels
March 2012
Marketing
February 2012
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January 2012
Contract Law
December 2011
November 2011
Recruitment
October 2011
Intellectual Property Update
September 2011
Commercial Disputes
July/August 2011
Holidays, Gym Memberships, Nights Out
June 2011
Social Media and Comparative Advertising
Visit Our Archive for previous newsletters covering Hospitality, Recruitment, Intellectual Property, Food & Drink, Commercial Property, Employment, Hotels, Restaurants, Start Ups and many other topics |
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Visit Our Archive for previous newsletters covering Hospitality, Recruitment, Intellectual Property, Food & Drink, Commercial Property, Employment, Hotels, Restaurants, Start Ups and many other topics
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Quick Links
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Visit Our Archive for previous newsletters covering Hospitality, Recruitment, Intellectual Property, Food & Drink, Commercial Property, Employment, Hotels, Restaurants, Start Ups and many other topics
|
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Find Previous Featured Articles | |
August 2012
The Olympics and Legal Implications of High Profile Events
July 2012
Hedging, LIBOR and Why Canadian Banks Are Setting Benchmarks
June 2012
May 2012
Employee Incentives and Share Option Schemes
April 2012
Hotels
March 2012
Marketing
February 2012
International Services
January 2012
Contract Law
December 2011
November 2011
Recruitment
October 2011
Intellectual Property Update
September 2011
Commercial Disputes
July/August 2011
Holidays, Gym Memberships, Nights Out
June 2011
Social Media and Comparative Advertising
Visit Our Archive for previous newsletters covering Hospitality, Recruitment, Intellectual Property, Food & Drink, Commercial Property, Employment, Hotels, Restaurants, Start Ups and many other topics |
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Greetings!
 Welcome to our September newsletter.
What a summer it has been! Despite the, at times, gloomy weather we seem to have excelled ourselves in becoming once again a patriotic nation and embraced the Olympics and Paralympics into our hearts.
The whole of Britain seem to have reached a post-Olympic slump, but despite this it hasn't stopped us from shopping! Reports have revealed that luxury brand sales have shown an increase during the Games, with London's streets filling with "fashionistas" from all over the world.
Our featured client this month is Marque-It International Limited, who offer an interactive digital marketing platform for luxury goods and services. The website links buyers and sellers in order to enhance the experience of exchanging these premium products and services at ease and with enjoyment!
In addition, we have also covered the contractual issues behind setting up a website, which are often neglected, and the increasing use of cookies which have started appearing all over our favourite websites.
If you have any queries or need advice in relation to any of the matters set out in this newsletter or any other legal issues, do not hesitate to call us on 0207 440 2540 or e-mail us at info@fortunelaw.com. We are always happy to help.
Further information
Fortune Law provides businesses with "a one stop shop" service dealing with commercial property, commercial litigation, employment, corporate and commercial law. We can also provide a dedicated service for international clients and we specialise in the hospitality sector.
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Shainul Kassam
Fortune Law Solicitors |
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Prada v Primark? 
London Fashion Week has now closed its 2012 doors but reminded us that having a brand name is a valuable asset to have for any company. This is more particularly so in the fashion/luxury goods market where customer perception of what is "quality" is key.
Luxury products must possess a certain quality which is both sustainable and recognisable. But even with a quality product, to be at the forefront of the market requires a strong brand image and an idea that represents something different and unique that consumers will become attracted to and engage with.
Recent reports have shown that the Olympics have had a positive effect on the West End's luxury brands, with a 13.5% increase on last year's sales (Experian FootFall Report- Olympics 29 August 2012- 9 September 2012). British fashion is an iconic symbol of London, and visitors from all over the world come to Oxford Street, Bond Street, Knightsbridge and the surrounding areas, to immerse themselves in luxury shopping heaven. With a 50% increase in the global turnover of luxury goods companies in the last ten years (source: LesEchos de fr), there is a growing awareness among clients and legal professionals that as stiff competition within the luxury sector and numerous external threats to the wellbeing of luxury brands increase the era of luxury goods law and fashion law has started.
Legal implications for brand owners
Key factors to consider are competition law, distribution, licensing/collaboration and intellectual property protection. We set some of these out below:
Distribution and anti-competitive behaviour: the last thing a luxury brand wants is for the market to be flooded with its products. Exclusivity is key and distribution channels should be carefully selected, tailored and minimised to maximise interest and avoid brand dilution. However brand owners must balance the need to control the market for their products with their legal obligations not to engage in anti-competitive behaviour. Smaller companies can benefit from exemptions but if the offering is a very niche product the definition of what the market is can change the position significantly.
Licensing v collaboration: recent times have indicated that collaboration - where two brands enter into a joint venture and leverage their respective brands - is catching up with traditional licensing models. Businesses want to have more control over their product and plans for the future, securing both design control and geographical distribution. Think Stella McCartney and Adidas or Orla Kiely for Uniqlo. Collaboration enables access to other markets and target audiences both domestic and foreign. What hasn't changed however is the need for the collaboration agreement to be tightly drafted and is usually based on a "one off" venture to ensure the exclusivity of the more "up market " brand is preserved.
Intellectual property rights: Think red soles on stilettos, think Christian Louboutin who successfully registered his scarlet soles as a registered trademark in the US in 2008. The protection of IP rights in branded products is crucial. Without a registered trademark the IP owner would have to rely on the law of "passing of" having to prove amongst other things that the IP owner possessed goodwill and reputation in the products, that the infringing party was misleading the consumer into thinking the products were that of the IP owner and the consequent damage. Far easier and more cost effective, however, to point to a valid trademark registration which has been breached.
Endorsements: it is highly likely that during one season or the other a brand will look to use endorsements from celebrities. This type of collaboration can be highly lucrative in terms of sales especially at a time when the celebrity is in their element. If, however the celebrity engages in behaviour that attracts negative media attention, this can devalue a brand significantly. Contracts with celebrities need to be carefully drafted and should include a "morality clause" which in effect imposes an obligation of "good behaviour". Exit clauses for gross misconduct are essential as are clauses which allow the brand to keep the celebrity on but at a lower fee.
If you require help or assistance with bringing your product to the market place and require specialist commercial advice, please do not hesitate to get in touch with us at enquiries@fortunelaw.com or call us on 020 7440 2540.
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Featured Client: Marque-It
www.marque-it.com
 Q & A With
Sue Lampard of Marque-It.
Tell us a little about Marque-It.
Marque-it International is the home of luxury, design and innovation.
It is an interactive digital marketing platform to showcase a global collection of fine, unique and bespoke products and services, providing a rich media solution to e-commerce challenges.
Marque-It is not just an advertising website. It is fully integrated to link buyers and sellers with each other and to the services that support and enhance their experience, with particular dedication to supporting communication and business networking.
It comprises support services for digital social marketing including: integrated video and TV platforms; analytical tools to monitor performance and growth; artificial intelligence to allow enhanced customer profiling; safe and secure payment gateways including PayPal, escrow and XX; sophisticated use of integrated social media; strategic use of flash banners; and digital magazines to showcase and promote products.
What kind of luxury goods and services can a consumer browse on your website?
Everything from prestige and performance cars, yachts, helicopters and innovative transport to luxury real estate, travel and accommodation, and from opulent lifestyle products to the latest innovations in technology, ecotechnology and design.
How did you come into this business?
Rico Walker, the CEO of Marque-It, created the concept and had the vision and drive to make it succeed. I joined him to provide support in business and project management to take the concept to the next level.
What legal services did Fortune Law provide and what did you think of them?
Fortune Law provided the expert input into the legal framework for the Marque-It platform and allied websites. This included our general terms and conditions, the website terms, privacy policy and acceptable use policy, and advice and registration of intellectual property rights.
We have been particularly impressed with how Fortune Law grasped our concept and ran with it, producing the necessary legal documents with professionalism, thoroughness and accuracy. It has been our good fortune to meet and engage Fortune Law and we look forward to a long term and prosperous partnership
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The Hidden Contract Behind Website Development
 Most businesses nowadays have an online presence - namely a website. These can be developed on a shoestring or a big budget. Some businesses attempt to set up the website themselves and others hire experts to do it on their behalf. What many businesses don't realise when hiring a developer is that there are many contractual issues that must be considered in order for the project to have a successful outcome, shelf life and protect the parties involved.
We set out below the common clauses which you should look out for in a website development contract and what they mean.
DESIGN AND TIMING- what is to be developed and by when?
It is important that the website is designed and constructed in a way that is required by the client both in terms of functionality and performance. A clearly designed site specification benefits both the designer and the user. It gives both parties a means of setting targets, in terms of timescale and costs. The developer should be contractually bound to work to the timescales given and the parties should agree a realistic launch date at the start of the process.
LEGAL COMPLIANCE- have end users been made aware?
Cookies are an important factor that must be considered when launching a website (a further insight into cookies can be found in our next article). The main issue is that a clear and concise explanation of what cookies are being used must be given as soon as a user hits the starting page. The developer should indicate what legislation the business needs to consider for example the use of cookies and distance selling regulations and point you in the right direction to obtain sensible legal advice.
COSTING/CHARGES- what payment mechanisms are to be used?
The agreed costs can be defined in one fixed fee, or what is more commonplace and practical is payment in instalments on completion of set milestones as agreed in advance. From the perspective of the company, it is advisable to agree a fixed price, payable in instalments when the agreed milestones have been completed. For the developer cleared funds should be requested in advance to enable work to start on the next stage and the right to down tools if milestone payments are not forthcoming.
ACCEPTANCE TESTS- does the website work?
Once the website has been completed by the developer, a variety of tests need to be done to ensure the website works as originally specified. Tests are carried out on performance, functionality and whether the website can handle the usage levels expected. These acceptance tests should be approved by the client before final payment is made.
LICENCES, CONTENT AND INTELLECTUAL PROPERTY- who owns what is developed?
There are various parts of a website that a client must ensure a developer hands over once they have completed their work. The main point of this is that the client will wish to own what it has purchased and in the future if the client wishes to make changes or amendments, they can do so without any additional complications. This can include intellectual property rights, copyright, coded pages, graphics etc. If content or code is not to be handed over or has been sourced from a third party, the client will need a user licence to ensure the content is validly authorised for use by it.
HOSTING AGREEMENT- who will provide maintenance and support?
Once a website is complete and has been launched, it needs to be hosted by a server. This could be carried out by the web developer, the user, or another third party organisation. Third party providers can also offer maintenance and support while the website is in operation. This includes regular back-ups of the system, analysing response time, ensuring a good internet connection and that the speed quality is sufficient for end users.
If you would like further information about the contractual issues relating to the setting up and maintaining a website, including the drafting of online terms, developer agreements, and user policies, Fortune Law has the necessary expertise and experience to advise you on your position. For further information, please get in touch by telephone on 020 7440 2540 or by e-mail at enquiries@fortunelaw.com.
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Cookies
You may have noticed an increase over the past couple of months in the number of messages that pop up on the homepage of websites asking you to accept or decline cookies for a better viewing/browsing experience.
Firstly, what are cookies?
A cookie is a small data file that is "implanted" onto an individual's PC, laptop or mobile device to collect information about each specific user. This stored information is then used by the online provider for a number of reasons:
- Advertising: to remember user preferences at a later date and advertise accordingly.
- Performance: useful to monitor the traffic on a website and see where users are coming from, how long they are staying, and how many are repeat visitors.
- Functionality: to recall data such as names and addresses when filling in forms, log in details and even the preferred language.
New regulations
Historically users were unaware of what cookies were and the impact of their browsing. Some information stored also related to names, residential addresses and email addresses and this personal data is subject to the Data Protection Act 1998. Therefore, European legislation was brought in and the UK implemented the changes through the adoption of The Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2012 ("Regulations"). These ensure that an individual must consent to their personal information being used, and must understand what the information will be used for.The driving force behind this is to enhance online privacy and protection as well as tackle the general lack of awareness of cookies and the implication of their use amongst internet users.
When were they brought in?
After a significant period of lead in time, as of 26 May 2012 if a website fails to comply with these rules they are now at risk of being in breach of the law.
What do I need to do as a website owner?
If you have a website, you need to ensure that you follow the steps below in order to comply with the Regulations.
Step 1 perform an audit to assess what type of cookies are required for your site. This the type of cookie, its purpose, the type of data it is collecting and for how long.
Step 2 assess how intrusive the use of cookies are likely to be. The more intrusive, the higher the obligation for the user to be notified.
Step 3 consider whether consent is needed. Generally consent is needed at all times, especially when cookies are analytic (those that recognise users, where they move on the site and for how long). However when they are opt-in, e.g. for a shopping basket, the position is more relaxed.
Step 4 decide on the best solution for obtaining consent; pop-ups, web links, icons etc. There is no universal approach and may depend on your business IT requirements.
Step 5 update your privacy policy. The law states that a website owner must provide clear and comprehensive information to its users to ensure they are better informed.
Research recently conducted by KPMG has revealed that four out of five UK businesses are in breach of the Regulations which could cost companies up to £500,000 (KPMG press release, 06/06/2012).
Fortune Law has the necessary expertise to assist and advise you on the Regulations as well as ensure general website compliance. We regularly advise online businesses on their terms and conditions, website user and privacy policies. Please do not hesitate to get in touch with us at enquiries@fortunelaw.com or call us on 020 7440 2540.
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