Retail Reduced – April 2025

Recent legal rulings have highlighted the evolving landscape of copyright law, revealing contrasting approaches between the European Union and the United Kingdom. This is a hot topic for retailers and most certainly one to watch. In the EU, the trend is towards broader protection for creative works, even those with functional elements, as demonstrated in cases like Cofemel and Brompton Bike. These rulings confirmed that copyright can subsist in 3D items where they are the result of the author’s own intellectual creation and no artistic or aesthetic merit is required, opening the door for copyright protection, for functional items products like bicycles and luxury goods like handbags.

In contrast, the UK maintains a stricter stance on copyright protection, particularly for 3D objects. The WaterRower case highlighted the UK’s narrow interpretation, requiring that designs must be the product of  significant craftsmanship and an artistic intention to qualify for protection as a work of artistic craftsmanship (WOACs) under section 4 of the Copyright, Designs, and Patents Act 1988. This reasoning contrasts with the EU’s approach to copyright protection as set out in Cofemel, which is that protection can subsist in any 3D object, regardless of its artistic merit provided it is a result of the free and creative choices of its author, can be identified with sufficient precision and objectivity and is not (solely) dictated by technical considerations.

Germany’s Birkenstock case further underscores the tension between the EU wide approach and that of individual member states, with its federal  court ruling that the iconic sandals were not eligible for copyright protection as a “work of applied art”, citing the need for designs to go beyond mere functionality to have creative merit. This legal conflict is likely to continue, with upcoming relevant cases like PI-Design AG v Shein set to address similar issues.

As the UK navigates post-Brexit legal changes, the future of copyright protection for fashion and design remains uncertain, and the debate between the EU’s more expansive approach and the UK’s stricter interpretation to WOACs will likely shape the legal landscape for years to come. We are tracking upcoming and significant cases and have just released a more detailed article on ‘The evolution of copyright law relating to 3D articles’ on our website. If you require any guidance on the evolving copyright judgments, please get in touch with our intellectual property team here at Foot Anstey LLP who would be more than happy to help.

As of 24 February 2025, the Arbitration Act 2025 (the ” Act”) received Royal Assent and its key reforms and new provisions will shortly come into force. The Act will introduce various amendments in an attempt to reform the law in England, Wales and Northern Ireland, as well as attract more international businesses to invest in the UK. This reshuffling of the arbitration landscape is warmly welcomed and provides an important reminder to many companies to review and understand the dispute resolution procedures used in their current contracts. It is imperative that retailers give consideration to the procedures they currently adopt when drafting and refreshing contracts to ensure that their dispute resolution processes provide them with the most appropriate, efficient and cost-effective solutions.

Reviewing your dispute resolution processes is essential to ensure that your business is protected when unforeseen challenges arise, and the ‘unthinkable’ becomes reality. Dispute resolution does not align with the narrative, “if it ain’t broke, don’t fix it”.

Commercial contracts often do, but really should always, include a jurisdiction clause which sets out what the parties do in the event of a dispute. This can include a meeting between senior members of each company. However, if that doesn’t resolve the situation, the contract will usually provide for a formal determination of the issue. More often than not, the standard clause in a contract provides for the exclusive jurisdiction of the English court system. Just because the court process was relied upon in the past for your business contracts, that doesn’t necessarily mean it’s still the most valuable approach. Court proceedings can often result in lengthy delays due to the huge backlog of cases waiting to be considered. These delays often result in extra expense for businesses and increased frustration. Furthermore, court proceedings in England are subject to the open justice principle and therefore are not confidential. In contrast, arbitration proceedings are strictly confidential between the parties and the arbitrators, the timetable is more flexible around the parties and a final hearing can be reached sooner. Arbitration may therefore be a better alternative and, if it is, the terms of the contract can require the parties to engage in this process rather than issuing court proceedings.

Moreover, the changes coming into force with the Act will make arbitration more accessible. The Act aims to overhaul the existing legal framework while preserving the UK’s position as a leading destination for international arbitration. Some of the relevant upcoming changes include:

• A default rule that ensures that the arbitration agreement will be governed by the law of the seat of arbitration, rather than directed with the original contract.
• The arbitrator will be granted a new duty of disclosure.
• The right to apply for a summary disposal.
• The new powers for courts to award arbitral proceedings relief against third parties.
• New rules around emergency arbitrator awards.
• Awards for lack of substantive jurisdiction.

If you would like a more detailed insight on the Act, have a read through our recent article ‘Our guide to the new Arbitration Act 2025’. Alternatively, if you require any advice or assistance in refreshing your dispute resolution processes in a way that is specifically tailored to retailer’s needs, then please get in touch with our Commercial Litigation team here at Foot Anstey LLP, who would be more than happy to help.

Facial recognition technology (FRT) is becoming an appealing tool for UK retailers in the face of heightened retail crime. While the benefits are clear, retailers must carefully manage privacy risks associated with biometric data collected by FRT to avoid costly missteps.

A key concern for retail use of FRT revolves around the handling of the biometric data it collects (facial scans in particular). FRT systems identify individuals by analysing and comparing the facial features of nearby people to a dataset. In the context of retail loss prevention, the dataset can be that of individuals who have been suspected of committing retail crime. If the system identifies a match, it will then create an incident and alert a member of staff. In doing so, the system effectively harvests personal data from shoppers who may have varying degrees of knowledge about the live operation of FRT depending on how clear the retailer is about using FRT in stores.

The absence of a clear legal framework designed specifically for FRT creates a challenge for retailers. Industry bodies have expressed concerns about the uncertainty surrounding FRT in both policing and the private sector. The Biometrics Institute has called for the rollout of FRT in retail to be aligned with that of the police, commenting “private sector usage of facial recognition influences public perception. It should match the same standards and policies as police and law enforcement use, as citizens will see the two use cases in the same light“. Without clear guidelines, it becomes taxing for retailers to identify the line between smart security and mindfulness towards customers’ privacy. This uncertainty can make it easy to get things wrong (even by accident) and lead to complaints, bad press or potentially regulatory investigation.

Facial recognition systems are not flawless and when mistakes happen, the consequences can be heavy on consumers. Last year, a shopper was wrongly identified as a thief by a facial recognition system and banned from branches with the technology in place. Instances like this indicate the necessity for clear avenues for consumers to challenge retailers’ use of FRT and that a degree of quality control is necessary over the implementation of FRT.

FRT remains an emerging tool in the retail space. The implementation of FRT going forward will likely depend on finding the right balance between innovation, customer expectations and evolving guidance. Further details on risks and considerations retailers should take into account when implementing FRT can be found in our BRC article here.

Nostalgia is proving to be a powerful driver in the UK retail sector, with brands increasingly turning to the past to spark emotional connections and renewed consumer interest. From fashion to the resurgence of vinyl, retailers are rediscovering the commercial value of a well-placed throwback.

Fashion has become a key outlet for cultural nostalgia, particularly among Gen Z consumers who are gravitating toward styles associated with the late 19s and early 2000s. Flared jeans, claw clips and acid wash denim have made a comeback as genuine aesthetic choices rather than just as ironic nods to the past. Platforms such as Depop and Vinted have seen a surge in popularity, fuelled by shoppers seeking unique and sustainable vintage fashion. Retailers are responding in kind: brands like Acne Studios and Kappa Unite have released a capsule collection echoing 90s trends in the sportswear niche. The demand for vintage clothing is hard to understate, with Google searches indicating ‘vintage clothing markets’ increasing by 89% in the past year as recorded by SumUp.

A similar revival is taking place in music retail, where vinyl (once seen as a casualty of digital streaming) has made a striking return. Gen Z listeners are embracing records as part of the resurgence and just like with vintage clothing, retailers have taken notice. Last Winter WH Smith reintroduced record selections to over 80 of its UK stores after a 30-year hiatus. The move to reintroduce vinyl falls within the backdrop of wider consumer interest, with the number of indie stores increasing from 3% of total UK music outlets in 2014 to 23% by October last year. The revival of vinyl is not happening in isolation but is part of a wider shift towards vintage formats that resonate with today’s cultural Zeitgeist as retro aesthetics become mainstream again.

Nostalgia is proving to be more than just a passing trend – it is a strategic, emotionally charged tool that retailers are using to meet modern tastes. Instead of simply recycling the past, brands are tapping into memory and identity in ways that feel current through concepts like capsule collections. Even in a fast-moving retail market that tends to favour modern innovations, consumers are demonstrating there is still a place for retro experiences.