Retail and Consumer

What's new in the fashion industry? The view from Poland

Published on 30th Jan 2023

The fashion industry as a big, fast-growing sector faces a range of regulatory challenges in 2023

Woman carrying shopping bags on her shoulder

The recent amendments to the consumer law did not go unnoticed in Poland. Many entrepreneurs have made changes to comply with the new regulations, which resulted in e-mail boxes full of notifications. Now, shops all over Poland are showing the lowest price for a period of at least 30 days before the start date of the promotion, if they are organising one.  

There are many changes that are important from the perspective of the functioning of the e-commerce sector and these amendments could prove to be crucial when overlapping with other regulations; for example, in fashion law. The Office of Competition and Consumer Protection in Poland has been active in both these areas checking whether brands are actually using the price reduction policy (and meet information obligations), whether they're posting false consumer reviews online or mislabelling paid advertisements in search results, but at the same time whether they are informing about the real composition of the garments.

Trade mark protection perspective

For the fashion world, an important decision regarding trademark protection was announced by the EU General Court on 18 January 2023). Luxury watchmaker Rolex was handed a loss in a quest to shut down another company's use of crown logo. The EU General Court agreed with the finding of the Board of Appeal of the European Union Intellectual Property Office (EUIPO) that the "watches" were dissimilar to "clothing, footwear, headgear" and, on that ground, found that there was no likelihood of confusion. 

In 2016, the Swiss watchmaker opposed the registration of Danish fashion group's crown trade mark for use on clothing, footwear, and headgear. However, the EUIPO's Board of Appeal rejected the existence of a likelihood of confusion due to the difference between watches and those products. The watchmaker then appealed and argued that this decision was taken “without taking into account their usual origin or the usual practices relating to their marketing”. Finally, the EU General Court held that the Board of Appeal was right to find that the goods at issue are different and rejected the existence of a likelihood of confusion. 

This decision was based on the argument that those goods were different in nature and intended purpose, and the clothing, footwear, and headgear were intended to dress the human body and the watches to be worn for personal adornment. They did not share the same distribution channels and they were neither in competition nor complementary. It was pointed out that the fact that the goods at issue may be sold in the same commercial establishments, such as department stores, is not particularly significant, since very different kinds of goods may be found in such shops, without consumers automatically believing that they have the same origin.

Osborne Clarke comment

These types of cases are rarely a sure-fire win for luxury brands, so it is crucial to properly choose trade mark classes during registration. The EU General Court has criticised the view that luxury watches are sold in the same places as luxury clothing. Expensive watches from well-known brands are most often distributed separately. Even if they appear in shops offering different goods, consumers are aware that they can find products from different manufacturers there. Apart from the conclusions regarding trade mark protection, it is worth noting that Rolex, being one of the most popular luxury watch brands in the world, avoids operating in e-commerce. The customer willing to purchase a watch needs to go to a physical shop. However, there have been recent reports that Swiss watchmaker may be planning to take a leap into the metaverse, because of trade mark applications, including activities related to use of non-fungible tokens. However, this aspiration might be a substantial challenge for the Swiss group, considering the new regulations changing the reality of e-commerce sector and planned regulations regarding new technologies such as artificial intelligence or crypto-assets. 

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* This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.

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