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Brand Academy 2012

Fri, 05 Oct 2012 14:40:00 +0100

There are only a few places left for Lewis Silkin's Brand Academy this Thursday 11 October, so register now! Join hundreds of industry leaders for an exciting debate on topical issues for brands and IP. Network with General Counsel, Heads of IP, CEOs, CFOs, Directors and Chief Marketing Officers from a broad spectrum of sectors.

Attendees will have the opportunity to put forward questions to the panel in advance, so this is a great chance to seek the opinion of industry leaders directly.

You can find more information about Brand Academy 2012, and register here.

ICANN has published the full list of applied for gTLDS

Wed, 13 Jun 2012 17:35:00 +0100

It is a very exciting time for the online world. However, there are also imminent dangers for brand owners, trade mark holders and businesses alike. The Internet Corporation for Assigned Names and Numbers (“ICANN”) has recently allowed for a radical increase in the number of Top Level Domains (“TLDs”), such as .com and .info. ICANN has today published the full list of applicants and strings that have been applied for and you can find the list here: http://newgtlds.icann.org/en/program-status/application-results/strings-1200utc-13jun12-en

Now that the list has been published, we are able to evaluate the potential risks to your brands and businesses. This is a serious concern for everyone. Please note that this is not just an issue for brand owners and trade mark holders. As you can see, applicants have applied for generic gTLDs, such as .blog, .beauty, .fashion and .media. Further issues will also follow once the gTLDs go live, as anyone will then be able to register brands as “sub-domains” (the part before the gTLD, such as lewissilkin.advertising).

The next steps are as follows, so even if you haven’t applied, it is important to prepare and get involved if there are any potential threats to your business:

13 June 2012 – “Reveal Day”: announcement of all applied-for domain names
13 June 2012 – Application comment period begins and formal objection period begins
12 July 2012 – Initial evaluation begins
12 August 2012 – Application comment period ends

You will now need to prepare to launch official objections with ICANN if you are concerned about any of the applied for gTLDs. Plus, you will also need to prepare to protect your brand from unwanted registrations once the gTLDs go live. ICANN have promised a “Trademark Clearinghouse” which is expected to play an important role in the launch of the New gTLD Program and in ensuring ongoing protection of trademark rights. The Trademark Clearinghouse will accept and authenticate rights information, and will support both trademark claims and sunrise services, required in all new gTLDs.

We at Lewis Silkin can help you with any queries that you may have about the new gTLDs, so please do not hesitate to give us a call.

ICO issues last minute further cookie guidance

Fri, 25 May 2012 11:26:00 +0100

This morning the ICO has issued further updated advice and guidance on changes to the EU cookie law. This is the third version of the Guidance in a little over a year. The Guidance now confirms that an implied consent mechanic, rather than an explicit opt-in mechanic is a valid form of consent to comply with the new law. In particular, the ICO has confirmed that a user’s consent can be inferred from moving from one page to another on a website provided that the user has a reasonable understanding that by doing so, they are agreeing to cookies being set.

The new Guidance has also addressed the issue of “prior” consent. Whilst the ICO state that wherever possible the setting of cookies should be delayed until users have had the opportunity to understand what cookies are being used and indicate their consent, where this is not possible at present websites should be able to demonstrate that they are doing as much as possible to reduce the amount of time before the user receives information about cookies.

The revised Guidance also contains useful information about the nature of the information that must be provided to users and the transparency of that information by reference to certain key factors, including the nature of the intended audience of the website.

Further key aspects of the guidance:

The ICO suggest that including information about the use of cookies in a general privacy policy is not sufficiently prominent.
As far as enforcement of the new rules is concerned, the ICO has confirmed that from 26 May 2012, it will consider complaints made by users about cookies.
As of 26 May, organisations will need to be able to demonstrate that they have taken sensible, measured action to move to compliance and that if a website has not achieved full compliance by 26^th May, the ICO will expect a specific and clear explanation of why it was not possible to comply in time.
The ICO has also suggested that it is highly unlikely that priority for any formal action will be given to focusing on uses of cookies where there is a low level of intrusiveness and risk of harm to individuals, provided an organisation can demonstrate that it has done everything it can to clearly inform users about the cookies in question. As such, the ICO is unlikely to prioritise for enforcement first party cookies used for analytical purposes and cookies that support the accessibility of websites and services.

We will be producing a further detailed note of the Guidance in due course but in the meantime, the ICO Guidance can be found here.

ICO signals implied consent approach for cookies

Thu, 19 Apr 2012 17:15:00 +0100

A senior official at the Information Commissioner’s Office (ICO) has signalled that ‘implied consent’ is likely to satisfy the requirement to obtain users’ consent when using cookies, provided that users have been given clear and comprehensive information about the type of cookies being used.

The revised ePrivacy Directive – dubbed the ‘cookie law’ – requires those dropping cookies (or similar technology) to obtain users ‘informed consent’. Concerns have been expressed that ‘informed consent’ may mean ‘explicit consent’ (i.e. ticking a box) - at least in respect of cookies that have a bigger privacy impact, such as those used for online behavioural advertising.

However, at a recent industry event a senior ICO representative suggested that where a website contains a prominent notice (e.g. in a banner) stating that the site uses cookies and the purpose of such cookies, then the act of a user navigating to the next page will be sufficient to obtain consent.

Whilst such an approach may not strictly comply with the law, it seems that it will avoid official enforcement action.

Updated guidance from the ICO is expected before the end of May when the ICO is due to start enforcing the revised law. It is expected that the revised guidance will provide clarity around implied consent and the use of cookies for analytics (in relation to which the ICO has stated that it is unlikely to take action provided users have been given clear information) and the ICO’s regulatory priorities (i.e. where it is likely to take enforcement action).

For more information please contact Simon Morrissey, James Evans or your usual Lewis Silkin contact.

The New Reg-ime

Mon, 19 Dec 2011 16:12:00 Z

Although perhaps surprised that a man named Reg Bailey should be Chief Executive of the Mothers’ Union, advertisers must nevertheless take seriously his report for the Government – “Let Children be Children” – published in June 2011. Its findings have prompted a nappy rash of new policies and proposals.

Not kidding

In direct response to one of Reg’s recommendations, the ASA has announced a new approach to sexual imagery in outdoor advertising 1. Ads that are “no more than mildly sexual” (e.g. a topless male model) can still go out to play. Images that are “sexually suggestive” (e.g. women in sexy lingerie and/or a mildly seductive pose) are likely to require placement restrictions away from schools. And posters bearing “overtly sexual images” (e.g. steamy clinches and passionate facial expressions) are now completely grounded.

Minor miracles

The ASA is also collaborating with other media regulators such as Ofcom, ATVOD, the BBC Trust, the BBFC, PPC and VSC/PEGI to produce a new website called ParentPort. This aims to cut through the acronym alphabettispaghetti, giving parents a more palatable route for complaints about inappropriate ads, programmes, products or services.

Not to be left out of the gang, the Advertising Association came forward with its own set of Best Practice Principles 2. Based on another of Uncle Reg’s recommendations, this voluntary initiative asks brand-owners to pledge not to offer sweeties (or other rewards) that encourage children to promote goods or services via their social relationships.

Uh oh, Lola!

Demonstrating its determination in this area, the ASA in November gave a stern telling-off to Coty about a magazine ad for “Oh, Lola!” perfume. This featured actress Dakota Fanning (aged 17) in a thighlength dress and holding an oversized bottle of the perfume in a “provocative” manner. The ASA concluded that Dakota looked under 16 and so the ad could be seen to sexualise a child.

1 See the “ASA statement on sexual imagery in outdoor advertising” published 11 October 2011.

2 See the AA’s “Best Practice Principles on the Use of Under-16s in Brand Ambassador and Peer-to-Peer Marketing” published 10 October 2011.