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Retail & Fashion eBulletin: Influencer marketing and recent IP cases

13 September 2018

Ahead of London Fashion Week, which takes place from 14-18 September, our latest eBulletin focusses on influencer marketing and also provides a round-up of some of the most recent IP cases and developments.

Update: ASA lead influencer crackdown

Two years ago our September Fashion Week eBulletin raised some of the issues around sponsored content and how brands could protect themselves from the associated risks. Here we provide an update on the subject and examine the continued crackdown by the authorities.

Over the past couple of years, the use of influencers has undoubtedly grown in popularity as a way for brands to appeal to their existing customers and attract new audiences. Retailers and luxury labels alike have found significant value in working with specialised influencers that are aligned with an audience base that they want to target. There are plenty of examples of this; from the rapid growth of Fashion Nova through its relationship with Kylie Jenner in particular, to Dior’s recent use of influencers to promote the relaunch of its iconic ‘saddle bag’.

Despite the clear benefits for brands, the Competition and Markets Authority (CMA) continues to stress that where influencers are paid or rewarded to promote, review or talk about a product in their social media feeds, consumer protection law requires that this must be made clear. See their recent press release on the subject here.

The CMA has also been working closely with the Advertising Standards Authority (ASA) who are considering the case for new regulations in this space. The ASA has called for evidence relating to the public’s understanding of the labels and identifiers used by advertisers online.

It would seem that the ASA intend to lead by example, as demonstrated by two recent rulings against Made in Chelsea star Louise Thompson. Back in July, the ASA banned Louise’s post promoting Daniel Wellington watches, as she had not used the label #ad or #sponsored to indicate that it was a paid sponsorship. You can see the full ruling here.

This week, Louise failed to disclose another post on Instagram as an ad, creating further curiosity relating to the ASA’s guidelines for sponsored social media content and the CMA’s studies on the influencer market.

In a more extreme development, the Berlin courts recently found that people may have to label something as advertising if it contains links to brands even when the post is not sponsored. It is clear therefore that there is a consistent trend towards more regimented online advertising. More than ever, it is important for brands and influencers to declare when there is payment for endorsing goods or services.

If you require further guidance on this topic, our Advertising Lawyers have put together a summary of the current Influencer Marketing rules which can be found here or contact one of our lawyers.

IP corner: recent cases and developments

Crocs shoes come a cropper in the EU General Court

A recent decision by judges in Luxembourg has seen Crocs, the manufacturer of plastic shoes, lose its battle to protect its design from copycats.

Judges backed a decision by the EU Intellectual Property Office in 2016, which stated the registration was invalidated based on prior disclosure on Crocs’ US website; at the Fort Lauderdale Boat Show in the US; and by means of sales of the shoes in the US.

You can read the full insight piece here.

Nike loses ‘LNDR’ trade mark battle

In another case of David and Goliath, mega brand Nike has lost its trade mark battle with women’s sportswear brand LDNR. The sports giant had initially launched an advertising campaign, titled ‘Nothing Beats a Londoner,’ which used the acronym ‘LNDR.’

However, the women’s sportswear company LDNR was concerned Nike’s ‘LDNR’ campaign infringed on its branding. The Intellectual Property Enterprise favoured the case of LNDR and warned Nike not to use ‘LDNR’ again.

You can see our earlier insights on the interim injunction here.

Louboutin: red soles get green light

One of our Intellectual Property specialists, Shireen Peermohamed, shares her views on the most recent update to the landmark Louboutin red sole case in an article for The Trademark Lawyer.

You can read the article in full here.

Meet our team at MAPIC

If you’re heading to MAPIC, why not put a face to a name and meet with one of our Property specialists, Melanie Benson or Lee Greaves?

MAPIC, which takes place from 14-16 November in Cannes, France, is the leading international retail real estate event for property players to build the ultimate retail and leisure mix.

Our Property team act for luxury brands and national retailers on landlord and tenant matters; acquisitions and disposals; and general management. The team also act for landlords and investors on shopping centre and out-of-town acquisitions and disposals.

If you would like to meet with either Melanie or Lee, you can contact them below:

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