22 minute read
Business advice Legal, consumer insight intellectual property, tax and trade marks
Over the past few weeks I’ve been getting out and about more and enjoying life including outdoor hospitality following the easing of lockdown restrictions in England.
But viewing the situation as a health and safety specialist, unfortunately what I’ve seen has shown yet again, that in managing the risks from one hazard, other issues and risks are created which otherwise wouldn’t have existed. I’ve seen fire exits blocked by reorganised shopping aisles and queuing areas across busy car parks forcing passers-by to walk in the road – both easily rectified, but a reminder of how easy it is to get distracted and lose focus on the significant hazards in our businesses in the pursuit of managing newly identified ones! What I’m really keen to raise awareness of is the need to ensure the health and safety basics in your breweries, bars, pubs and restaurants are covered. It’s great that we’re getting back to business and the road ahead looks positive, but there are plenty of key health and safety issues that haven’t gone away in the hospitality sector. The impact of dealing with the recent crisis doesn’t excuse employers and other duty holders from the responsibilities they’ve always had. Managing health and safety in your business to ensure risks are suitably managed remains your responsibility. Adapting to COVID-secure working is no excuse for letting previously well-established health and safety standards slip. If we take things right back to basics, as a business owner you have a legal duty to ensure that the people who work for you, access your premises and use your services are kept safe. This includes maintaining your premises in a condition which doesn’t create safety risks, implementing safe systems of working and maintaining work equipment so that it can be used without creating additional risks. I’m going to ask you to give your business a restart health and safety check-up! As employees return (potentially from furlough) to meet rising demand for your products and services, and as new employees join your business and adapt to new ways of doing things – what have you done to remind them of or educate them in the basic health and safety controls that were previously in place and ensure their personal safety isn’t compromised by lapses in their memories of the safe ways to do things? Those returning to work after any period of absence and employees that are new to your business need to be inducted, informed and trained on the hazards and controls in your business. Without this they are at a significantly increased risk of workplace accidents and injuries.
Has the prolonged shut down or slow down in your business created additional risks that you’ve not considered? For instance, has the risk of legionella in your water systems been properly managed while usage of the premises you occupy has been reduced? Have legally required maintenance, inspections and tests of equipment and systems in your business been interrupted by lockdown restrictions? Your forklift trucks, gas installations and pressure systems still need to have had their statutory examinations, your fire system still needs to have been maintained and the condition of your premises and work equipment closely checked for deterioration before increasing occupancy or reoccupying takes place. Have training arrangements and required training refreshers all been kept up to date? For instance, have all of your trained first aiders, forklift operators and fire marshals had the necessary refresher training - or has the pandemic interrupted this? Of course, as with all matters affecting the health and safety of persons connected with your business activities, it’s not just the potentially devastating effects on an individual that will concern you. Fines resulting from prosecutions for health and safety breaches quickly run into the tens of thousands of pounds for the simplest of breaches and can go far beyond that level, into the millions, if more serious harm is risked. So, let’s get back to business - but let’s do it safely - protecting you, your people and your business.
It’s time for a restart H&S check-up
In this article, Head of Napthens Health and Safety, Chris Walker, explains the importance of getting back to basics on health and safety since the pandemic…
Has the prolonged shut down or slow down in your business created additional risks that you’ve not considered?
Napthens Health and Safety is a trading name of ATG Health and Safety Consultants Limited. ATG Health and Safety Consultants Limited is a limited company incorporated in England and Wales with registered company number 5172986. It is a business providing Health and Safety consultancy which is not regulated by the SRA.
For advice on this topic or on legal issues affecting your business, please contact SIBA Legal Helpline on 0845 6710277
North West Law firm LLP is a SIBA supplier associated and Gold Standard Sponsor. The firm has a team of specialists looking after legal requirements of clients in the leisure and licenced trade sector, with clients including Daniel Thwaites Plc and Titanic Brewery. Napthens manage the SIBA Legal Helpline which offers legal advice and guidance on a wide range of legal issues affecting your business, including: General commercial, intellectual property, corporate finance, dispute resolution and litigation, commercial property, licensing, employment law and HR advice. Any enquiry through the helpline will receive up to 1 hour of free legal expertise (if further work is required, you’ll be advised of the appropriate charging structure). Full details of the helpline can be found on the SIBA Members Toolbox.
One of the bonuses of lockdown #27 or whatever we’ve come out of, is that I decided to treat myself and Mr Katy to a restaurant meal kit, once a week. I’ve really enjoyed the deliveries I’ve had so far (Cote, Pasta Evangelists, Pizza pilgrims, Hakkasan, the list goes on.) And as time ticks on a new habit has been formed in the Moses household, Friday night is ‘meal kit night’. I don’t see that changing any time soon and I’m not alone. Recent research we carried out, in partnership with Slerp, found that an impressive 11.5 million UK adults (22%) have ordered a ‘cook at home’ meal box in the last 12 months, with an even larger proportion (40%) intending to purchase in the future. As for beer, half of that proportion (11%) had ordered beer delivery from pubs or restaurants, a further 13% intend to going forward. But the rise and rise in ‘at-home’ hospitality isn’t the only legacy to come out of our endless lockdowns…
A catalyst for experimenting
In fact during lockdown many of us tried to replicate our visits to pubs, bars and restaurants. And there are many things which people have really enjoyed about staying in vs going out; a more relaxed environment, cooking our own food and trying new food and drink are among the top things, according to our recent research with Zonal. Low and no alcohol is a great example of consumers trying new things at home; 23% tried a low and no brand during lockdown and 98% say they will continue to drink those brands. Lockdown has in fact been an amazing catalyst for consumers experimenting, trying new things and new brands, and just shaking up people’s eating and drinking habits. What does this mean for beer? Many people’s regular ‘repertoire of brands’ have been shaken up. Many have spent a little more on new brands as they haven’t been paying ontrade prices. They are more open to switching up their repertoire right now.
Lockdown legacies
Katy Moses, the MD at insight specialist KAM Media, looks at how changes in consumer behaviour during lockdown could be here to stay…
KAM Media is a boutique research consultancy, specialising in hospitality and retail, running bespoke and syndicated customer research programmes for both pub companies and on-trade suppliers. Find out more at www.kam-media.co.uk.
A summer of socialising at home
People have also been investing a lot in ‘at home’ entertainment, with a 167% increase in spending on TV subscription services, such as Disney+ and a 143% increase in spend on video. Interestingly, the highest increases in spend here has been from the 18-34-year-olds, which is a core consumer base for many pubs, bars and restaurants. It suggests, therefore, that lockdown has forged new social habits amongst these age groups and created new social occasions which will now compete alongside traditional hospitality venues for consumer time and spend. We’re likely to see more at home drinking occasions despite the re-opening of hospitality. In fact, 36% said they will have friends/family over to their homes more often vs pre-pandemic. 41% of UK adults said they are planning on having picnics with friends and family, 31% are planning garden parties and 39% will invite friends and family for BBQs. (Just so as to re-assure any operators reading this, 60% intend to visit a pub or restaurant too!)
Think experiential not just functional
Our research suggests that the next phase of ‘at home’ solutions will need to move from a purely functional transaction to an experiential one. The opportunity is to not just deliver products to consumers, Amazon have pretty much nailed that! Operators are now thinking beyond the food and offering complete ‘solutions’ for different occasions including beautiful, sustainable branded packaging, drink pairings and even tableware and playlists! Many don’t yet offer alcohol with their nationwide ‘dine at home’ solutions, but it’s likely to come. What consumers want is ‘occasion-based solutions.’ In retail they call this a ‘missionled approach’ rather than ‘category led’. People are ultimately lazy- if you can figure out why, when and with whom they will be consuming, then you can start to think about providing a total solution for them. Are there opportunities for to work with hospitality operators on this? Is your DTC offer occasion- and experience-led’? If consumers are ordering for a BBQ or garden party, can they order what they need from you? Another example- more than 1-in-5 consumers say they prefer to buy a gift experience rather than a physical product for a friend. 21% say they would send an ‘alcohol tasting experience’ as a gift. There’s also been a rise in subscriptions across the board. How do you turn a beer into a gift experience? Many have done it. The opportunity is there.
The year of staycations
16.2 million people intend to stay in a selfcatering holiday rental this summer. Selfcatering options are bouncing back much faster than hotels. 1-in-4 of these tourists would order ‘BBQ kits’ and ‘picnic hampers’ whole on holiday. 1-in-10 are interested in cases of wine and take-away kegs of beer. Local breweries should even be thinking about ‘brewery tours’ for visiting tourists. There could be an opportunity to tie in with holiday rental companies and offer welcome boxes and taster kits. Lockdowns may well be behind us (for now) but their legacy lives on. Many consumer habits will not just bounce back because the world is re-opening. Those who recognise the changes, and explore and embrace them as potential opportunities will be the ones who come out fighting.
Why unregistered trade marks could see trouble brewing for beer brands
Chris Baume, trade mark attorney at leading European intellectual property law firm, Potter Clarkson, looks at how brewers can protect their brand in an increasingly crowded market…
Potter Clarkson helps companies, organisations and individuals across all sectors of business to understand, create, protect and defend the commercial value of their innovations anywhere in the world through intellectual property rights. As a full-service intellectual property law firm with expertise in patents, trade marks, designs, litigation, licensing and consultancy, the firm can provide specialist support in all areas of IP. Find out more at www.potterclarkson.com.
Brand value is clearly highly prized in the brewing sector – between 2009 and 2019, the number of UK trade mark applications filed covering “beer” (trade mark class 32) increased by some 530%. Despite this, many brewing businesses are still not registering their marks and, instead, rely on their use of a trade mark to generate rights in the UK. As the market becomes increasingly crowded, competition between rival brands will inevitably result in more disputes as those with registered rights flex their litigious muscles. Conversely, those with unregistered trade marks could be exposed if a conflict with a third party arises. Here, we cover the issues for consideration and practical steps beer brand owners can take to protect themselves.
Determining unregistered rights
A key benefit of a registered trade mark is the ability to simply produce the certificate as evidence of the existence of a right and to show when the right was established. By contrast, an unregistered right in the UK requires its owner to demonstrate that: 1. Use of a sign has generated a goodwill attributable to the business in the UK; 2. Another business has made a misrepresentation to consumers and the misrepresentation has led to confusion; and 3. Misrepresentation has resulted, or could result, in damage to the goodwill. Those three elements of ‘passing off’ are cumulative and must be satisfied by filing supporting evidence. Often, a significant amount of evidence is required to demonstrate each of the three elements of ‘passing off’ to bring a successful claim. The law on passing off is complicated, claims can be difficult to prove and, as the burden of proving passing off rests with the trade mark owner, taking action can be expensive. Looking at the 85 trade mark cases involving conflicting goods in class 32 during the past decade, the overwhelming majority have relied on passing off as a ground for opposition1. However, most of them were unsuccessful in showing evidence of passing off.
Scope of protection
Registered trade marks provide much stronger protection than goodwill because they give a business a legal monopoly over a trade mark, which means no one else can use the same or similar trade mark in relation to the registered goods and services in the country it is registered. Maintenance of a registered trade mark, by renewing it when required and keeping it in use, means a trade mark registration can last in perpetuity (much like the very first UK registered trade mark; the Bass Red Triangle, registered in 1876). Goodwill, however, does not necessarily give a business the same exclusivity over a third party’s use of a sign. Passing off allows a business to stop another trader from using the same name where this causes confusion, but this might be geographically limited and the scope of the right granted may be limited by the context of the goodwill and the third party’s use or other circumstances.
What should brewing brands do?
Registration might not always be feasible because, for example, an application could be blocked by a similar existing trade mark. If the business can only rely on passing off, we recommend keeping a record of the following types of information and documents to demonstrate the business’ trading history in relation to the trade mark, which will help in evidencing goodwill: • Ownership of the business and any changes to that ownership • Customer lists • Invoices • Sales figures/volume • Area of trade • Photographs of products and labels • Press coverage • Promotional/advertising campaigns • Awards • Customer feedback or comments that might indicate confusion However, gathering this evidence can be time consuming. Consequently, the cost of proving that a business has an enforceable unregistered right under the law of passing off will almost always be significantly more than the cost of acquiring a registered trade mark.
Commercial realities
Unlike registered trade marks, goodwill cannot exist independently of the business, nor can it be sold, purchased, or transferred separately. When a business is transferred, the purchaser will usually acquire all tangible assets, such as equipment, stock, premises, and staff, etc., but may also want the acquired business to continue trading, which will involve the transfer of intangible assets, including the business’ goodwill. Calculations for the value of a business’ goodwill are complex and require specialist financial advice – those with unregistered rights may not realise the full value of their brand assets. The bottom-line commercial reality is clear - if a trade mark is available and registrable it is always recommended to register it rather than rely solely on goodwill and passing off. By obtaining registration of a business’ valuable trade marks, you will save time, stress and expense, as well as enhance the value of the business should you ever wish to sell.
Amy Ralston from law firm Stephens Scown looks at the regulations you must consider when promoting your products online…
What are the rules around promoting alcohol on social media, and what are the risks to brands and influencers if they get it wrong? There are advertising rules that brands and influencers must comply with when promoting and advertising alcohol on social media platforms – and these rules extend to influencers promoting the products on behalf of the brand and/or company.
Rules for promoting alcohol on social media
Section 18 of the UK Code of NonBroadcast Advertising, Sales Promotion and Direct Marketing (CAP Code) contains the rules regarding alcohol. As of today’s date, there are 17 rules in this section, including but not limited to the prohibition of linking alcohol with: • Unwise drinking styles; • Boredom/loneliness; • Sexual success; • Enhancing popularity and/or confidence; • Anti-social behaviour; • Appealing to children; and/or • Depiction of someone who is or appears to be under 25. When a brand asks an influencer to promote its alcoholic products online, it must be sure to have a comprehensive influencer contract in place, which requires the influencer to comply with the CAP Code. Especially, the rules which relate to the promotion of alcohol on social media.
What brands should be aware of
The brand should carefully consider whether the influencer themselves are an appropriate choice to endorse and/or promote the alcoholic product. Brands have been deemed to breach the CAP Code when using influencers to promote alcohol on social media for appearing under the age of 25 – even if the influencers themselves are 25 years old. This is why creating a proper influencer due diligence process into the brand’s marketing strategy is key, as well as ensuring that the brand has the right controls over the content, the timeline and access to the follower engagement statistics.
It is recommended that any “gifted” alcoholic products are accompanied with information regarding the promotion of alcohol on social media and the do’s and don’ts to lessen the risk of the brand hitting the headlines for failing to comply with the ASA rules or the Consumer Market Authority guidance on social media endorsements. The influencer marketing industry is growing rapidly, and it is important that brands are prepared and properly protecting themselves before it can exploit the benefits of using influencers to promote and/or endorse their products on social media – especially when it comes to regulated products – alcohol is not the only regulated product out there.
It is important that brands are prepared and properly protecting themselves before it can exploit the benefits of using influencers to promote and/or endorse their products on social media – especially when it comes to regulated products The risk with promoting alcohol on social media
Ultimately, the risk for brands is damage to their brand reputation – an ASA ruling can create adverse publicity, media refusal, the removal of pay-per click ads, disqualification from industry awards, landing a place on the ASA’s “wall of shame”, etc. The risk for influencers is also damage to their reputation – one slip up could see you being refused brand deals and/or cause you to lose brand deals. The content itself may also be removed for being in breach of the rules and/or the social media platform’s terms and conditions. We understand the ins and outs of influencer marketing and can ensure that you can go into the process with your eyes open – understanding the risks and how best to minimise reputational damage. We can provide guidance on all aspects of influencer marketing, including drafting bespoke influencer contracts and provide training to your marketing team.
Amy Ralston is a solicitor in the Intellectual Property, Information Technology and Data Protection team. She specialises in influencer marketing, brand endorsement and the regulation of the same. To discuss any issues raised in this article, please call 01392 210700 or email influencers@stephens-scown.co.uk.
Like other food and beverage producers, brewers often depend on innovation to survive. A new approach, a new design and new equipment are often needed, and for these to be successful it is essential to resolve scientific or technological uncertainties – will this concept work? Will it work efficiently? Will it introduce something new and unknown? Such approaches will require a degree of research and development which introduces R&D Tax Credits to those who do. At Legal Rooms, we have seen an industry determined to adapt and change through continued resilience, overcoming whatever challenges are thrown their way, whilst at the same time demonstrating a strong empathy toward each other, their customers, and the environment. Seeking to be ever more inclusive, appealing to a more diverse customer base, developing new recipes, bold flavours, and innovative and sustainable techniques. All of which, and more, are focus areas encouraged by the UK government as part of their long-standing R&D Tax incentives.
What is R&D?
R&D Tax Credits are designed to encourage innovation and increase spending on R&D activities for limited companies operating in the UK. They are one of the UK government’s top incentives for encouraging investment in research and development and allows company’s R&D expenditure to be recovered either as a reduction in Corporation Tax or a cash repayment. R&D Tax incentives have the potential to be used to great advantage by many independent brewers, regardless of the stage they are at, as they seek to continue raising the profile of their beers. Appealing to many more consumers, with ever more educated and adventurous palates, helping independent brewers become much more celebrated across the UK and abroad. Most recently Legal Rooms Engagement Manager for North Scotland, Graeme Stewart, gave an insight to R&D during Regional Members’ meetings: “These meetings were a great introduction to the membership whereby those who took part could ask various questions to how R&D can benefit their business on an annual basis. It's incredible how many companies are unaware of this incentive and the benefits it brings to their business, many of a brewer’s existing day-to-day activities will align with R&D.” R&D Tax incentives have traditionally only been accessible to large breweries, however Legal Rooms have spent many hours developing an approach which makes access to these important incentives fairer for all, whether large corporation, small independent, or new start-up. Our carefully selected cadre of PhD qualified technical experts, highly experienced agriculture and brewing specialists, and qualified accountants would be able uncover each and every aspect of eligibility in your business, from developing your own techniques for different beer styles, to trying different grains, yeasts, adjuncts, flavour combinations and dietary substitutes, whilst maintaining high product quality, drinking experience, and general terroir.
Brewing craft beer with the support of R&D Tax Credits
Iain Colquhoun, National Sales Director at Legal Rooms, offers an overview of how the R&D Tax Credits scheme could mean you’re due a tax rebate…
What areas of brewing might count as R&D?
• Developing new processes or products that involve experimentation. • Enhancing existing processes or products. • Integrating or scaling up bespoke systems or equipment. • Using unconventional ingredients that require specific treatment. • Eliminating artificial preservatives additives/allergens/etc. • Changing the alcohol content of a product.
Are you performing R&D?
For many businesses, an R&D project is rarely embarked on formally. The most common chain of events is an initial observation, a desire to improve on that observation, followed by a series of attempts to achieve that improvement. This often leads a business to believe that they are not performing R&D, when in fact they are, regardless of achieving the improvement, or whether another business has achieved something similar. Taking on activities where the end-result is not known from the outset, where a series of iterative steps need to be taken, opens up the business to financial risk.
This is risk in terms of staff costs, spending time investigating and trialling improvements, as well as in consumables costs on ingredients, and development aids used up in attempting the improvements. HMRC recognise that it is in taking these risks that a business moves with the times and survives for the long term. So, whether you are developing bold new flavours, gluten free, vegan friendly, lowcalorie, or even non-alcoholic beers with all the mouthfeel and flavour of their alcoholic counterparts or seeking efficiencies in your processes to offer a more sustainable approach, such as reducing the amount of water utilised or the amount of energy consumed per pint brewed, etc, there is a good chance you are already performing R&D and could be entitled to a tax rebate.
