The UK's Advertising Standards Authority Puts a STOP to Gender Stereotypes in Ads

EU Commission Alleges Sanrio Used IP Rights to Partition EU Single Market

DOJ Puts Website Accessibility Regulations on Inactive List

Retailers — Practical Guidance on How to Respond to the Increasing Threat to Cyber Security

Reproducing the Symbol of the Italian Motor Vehicle “VESPA” Constitutes Criminal Conduct

New York City Follows Trend in Passing Predictive Scheduling Law for Retail

The UK's Advertising Standards Authority Puts a STOP to Gender Stereotypes in Ads

Author: Nicola Conway

On 18 July 2017, the UK's Advertising Standards Authority ("ASA") published a new report which calls for an end to gender stereotyping in advertising. The report comes at the end of an investigation into this issue, during which the ASA consulted academics and specialists, reviewed relevant literature, held seminars with expert stakeholders and conducted research into public opinion.

The process identified six harmful categories of gender stereotypes, including: (1) roles (occupations or positions usually associated with a specific gender); (2) characteristics (attributes or behaviours associated with a specific gender); (3) mocking people for not conforming to stereotype; (4) sexualisation (portraying individuals in a high sexualised manner); (5) objectification (depicting someone in a way that focuses on their body); and (6) body image (depicting an unhealthy body image). The evidence reveals that, wherever they appear or are reinforced, "gender stereotypes have the potential to cause harm by inviting assumptions about adults and children that might negatively restrict how they see themselves and how others see them".

Currently, the UK Advertising Codes include rules that prevent ads from generally causing harm and serious or widespread offence, but they do not specifically address gender stereotypes. Therefore, the ASA has concluded that more needs to be done to regulate this area. Chief Executive of the ASA, Guy Parker, has stated that "portrayals which reinforce outdated and stereotypical views on gender roles in society can play their part in driving unfair outcomes for people...while advertising is only one of the many factors that contribute to unequal gender outcomes, tougher advertising standards can play an important role in tackling inequalities and improving outcomes for individuals, the economy and society as a whole."

The UK Committee of Advertising Practice ("CAP"), which authors the UK Advertising Codes, is now being tasked to develop new standards for advertisers and marketers which ASA will administer and enforce. The full scope of the standards remains to be seen, but in the meantime CAP has committed to delivering relevant training and advice in good time before the standards come into force in 2018, and to publicly reporting on its progress.

EU Commission Alleges Sanrio Used IP Rights to Partition EU Single Market 

Authors: Robert Bell and Roman Madej

On 14 June 2017, the EU Commission announced that it was opening an investigation into Sanrio, owner of the Hello Kitty brand. Sanrio have been accused by the Commission of an infringement of Article 101 TFEU, the prohibition of anti-competitive agreements. The infringement relates to Sanrio's use of the Hello Kitty brand on products. The Commission is investigating whether the company breached EU competition rules by restricting their licensees' ability to sell licensed merchandise cross-border and online through the use of their intellectual property rights.

The investigation follows the conclusion of the e-commerce sector enquiry by the Commission in May this year. We have previously commented how the conclusion of that enquiry was fairly unique in that it did not recommend any policy or legislative change. Instead, it rather acted as a successful fishing expedition for the Commission to amass evidence of potential corporate liability. That in itself seems to be the growing policy of the Commission; enforcement first. Perhaps the Commission believes the strongest way of changing company behaviour is to keep targeting individual companies with investigations to reinforce the law and change negative behavioural norms.

DOJ Puts Website Accessibility Regulations on Inactive List

Authors: Merrit Jones, Heather Goldman, Rodney Page, Steven Stimell, Jennifer Dempsey, William Wortel

Retailers and other businesses that have been waiting for the Department of Justice (“DOJ”) to promulgate regulations concerning website accessibility under Title III of the Americans with Disabilities Act (the “ADA”) will now have to wait a lot longer. Eight years after the DOJ began the rulemaking process on this issue, it has now listed the rulemaking as “inactive.”

Federal agencies typically provide public notice of the regulations that are under development twice a year in the Unified Regulatory Agenda. The first Agenda was issued by the Trump Administration on July 20, 2017, and contains noteworthy changes from the last Agenda issued by the Obama Administration.

For the first time, the Agenda breaks down all agency regulatory actions into three categories: active, long-term, or inactive. While the Agenda does not define these terms, only the active and long-term matters receive a description and projected deadlines. The inactive matters appear in a document called “2017 Inactive Actions.

Recently, courts have filled the void left by the absence of government regulations with a patchwork of conflicting decisions. As we have previously reported, the Northern District of California granted a motion to dismiss a website accessibility case under the primary jurisdiction doctrine. In Robles v. Dominos Pizza LLC, the court found that holding Dominos liable when the DOJ still has not promulgated website accessibility regulations would violate Dominos’ due process rights.

As we also reported, however, the Southern District of Florida ruled, following a bench trial in Gil v. Winn-Dixie Stores, Inc., that Winn-Dixie’s website violates the ADA even though no purchases can be made through the website. In so holding, the court applied the Website Content Accessibility Guidelines (“WCAG”) 2.0, a standard developed by a private industry group.

Most recently, we reported that in Gorecki v. Hobby Lobby Stores, Inc., the Central District of California denied Hobby Lobby’s motion to dismiss. The Court relied on DOJ regulations requiring public accommodations to use auxiliary aids and services to “communicate effectively” with disabled customers. Bryan Cave has experience in defending against website accessibility claims, and has provided advice and webinars on steps businesses can take to improve website accessibility.

Retailers — Practical Guidance on How to Respond to the Increasing Threat to Cyber Security

Author: Nicola Conway and Mariya Uzunova (Intern)

According to the British Retail Consortium ("BRC"), online retail sales are increasing by around 10-15% each year and cyber-crime is increasing in parallel.

The BRC's Annual Retail Crime Survey 2016 reveals that cyber-crime (such as hacking or data breaches) represents 5% of the total direct cost of crime to retailers each year - which equals a direct financial loss to the industry of around £36 million. Furthermore, around 53% of fraud in the retail industry each year is cyber-enabled - which equals a direct cost of around £100 million. The need for retailers to develop their cyber security protections has never been more pressing.

Some of the most common threats to retailers include fraudsters "phishing" for customers' personal data or "spear-phishing" for company data; hackers breaching company databases to access customer credit card details for criminal transactions; and criminals using "ransomware" to freeze a company's IT systems and demanding a ransom to reinstate access.

In light of the increasing cyber dangers to retailers, the BRC has published a Cyber Security Toolkit for Retailers which provides practical guidance on how to prevent or handle cyber-crime and other forms of online criminal activity. The crux of the advice is that retailers should identify the specific cyber security threats to their business and then develop risk management processes to defend against and/or respond to such threats. Specifically, retailers are encouraged to adopt "a full lifestyle approach to cyber security incident management within the company's overarching information security strategy" and follow the "P-P-R-R-R" steps:

  • PREVENT: seek to avoid cyber security breaches such as data breaches altogether by introducing stronger security protections;
  • PREPARE: develop a structure and plan to mitigate the impact of potential cyber security breaches;
  • RESPOND: convene all relevant parts of the business to implement the incident management plan (including the board who has ultimately responsibility);
  • RECOVER: reduce any residual cyber vulnerability and manage any resulting reputational damage; and
  • REVIEW: take stock of lessons learnt from previous incidents and incorporate these into the company's overall information security strategy.

All cyber risks have the potential to negatively impact a company's profitability, competitiveness and reputation. Failure to have adequate protections in place to mitigate these risks may also expose a company to claims that it has breached statutory, regulatory or contractual obligations. Therefore, whilst cyber risk is increasing, there are positive steps a retailer can and should be taking to protect itself and its customers.

Reproducing the Symbol of the Italian Motor Vehicle “VESPA” Constitutes Criminal Conduct

Authors: Luigi Zumbo and Arturo Battista  

The Italian Criminal Supreme Court (hereafter, the "Supreme Court") recently upheld the decision of the Criminal Court of Rome regarding the counterfeiting of the famous scooter's distinctive logo, as well as many products and gadgets directly associated with the image of the well-known scooter.

The decision of the Supreme Court established that the mere reproduction of an image of the vehicle, even without the word “Vespa” itself, can be considered a criminal offence. Such conduct would amount to the “introduction and commercialization of counterfeited products into the Italian State”.

In the case at stake, the Vespa image was noted to be able to cause confusion among consumers in relation to the origin of such a product and its manufacturer.

The Supreme Court stated that portraying the Vespa’s logo on gadgets and products amounts to unlawful conduct, even if the trademark has not been identically reproduced, since the figurative model triggers a clear and immediate reference to a broadly known motor vehicle as well as its trademark.

In conclusion, the Vespa’s shape is considered a trademark itself. It is the distinctive sign of a specific product and it can stimulate spontaneous association with the scooter among consumers.

This decision of the Supreme Court suggests the importance of taking great care in commercializing products that represent important and iconic national trademarks, and the need for importers and distributors to obtain proper legal advice.

New York City Follows Trend in Passing Predictive Scheduling Law for Retail

Author: Traci Choi

New York City has enacted a law banning "on-call scheduling" for retail employees. The law takes effect on November 26, 2017.

With "on-call scheduling," an employer requires an employee to be available to work, to contact the employer, or to wait to be contacted by the employer to determine whether the employee must report to work.

New York City’s new law, Local Law § 20-1251 (Int. No. 1387-A), prohibits retail employers from cancelling, changing, or adding work shifts within 72 hours of the start of the shift. Retail employees may, however, request time off and switch shifts with their co-workers. Employers can revise employees’ work schedules with less than 72 hours' notice under limited circumstances.

Retail employers must also:

  1. post employees' schedule 72 hours before the beginning of the scheduled hours of work;
  2. provide upon request a written copy of employee's schedule for any week worked within the past three years; and
  3. provide upon request the current schedule for all retail employees at the work location.

New York City follows a number of other cities in implementing scheduling laws for retail employers. San Francisco set the trend when it enacted the Predictable Schedule and Fair Treatment for Formula Retail Employees Ordinance in 2015. Police Code section 3300G imposes penalties on employers for changing schedules on short notice, requiring one hour of "predictability pay" when schedules are changed with less than seven days but more than 24 hours of notice. Employees must receive additional pay if employers provide less than 24 hours’ notice of a scheduling change or they are not called into work during an on-call period.

Despite its intent to provide greater predictability and stability for employees, a report by the California Retailers Association (CRA) characterizes San Francisco's scheduling law as unnecessary and frustrating for employees and employers. According to the CRA report on the law's impact one year after its implementation, many employees are deprived of the flexibility that working in retail affords them, and employers experience added administrative burdens and lack of flexibility.

Seattle enacted a more robust law. Municipal Code § 14.22 requires employers to provide additional compensation if retail employees' schedules are changed with less than two weeks' notice or when they are scheduled for "clopenings" — back-to-back shifts with less than a 10-hour break between shifts. The ordinance further allows employees to request a preferred schedule, requires employers to engage in an interactive process to discuss scheduling requests, prohibits employers from retaliating against employees who decline a shift added with less than two weeks' notice, and requires employers to offer shifts to existing staff before hiring additional workers.

Employers should monitor local ordinances for similar enactments in their cities, but also monitor developments at the state level which could pre-empt such ordinances.

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