Legally Speaking: Tim O’Callaghan

Tim O’Callaghan is a partner in Druces LLP, specialising in advice to fashion and luxury goods business. Here, he explores lingerie’s legal issues.

Whilst it seems that the tills of most UK retailers have not rung merrily for some time, in cyberspace the servers of online sellers of lingerie and swimwear have been humming and whirring with orders, as UK customers embrace the obvious advantages of privacy and convenience that come with purchasing intimate apparel online.

E-tailing has advantages not only for the customer but for sellers as well. It is a shop window to the world for your products, without the overheads associated with traditional retail – rent, rates and sales staff.

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As many new companies scramble to set themselves up online, customers are becoming more aware of consumer rights. It is equally important for seasoned etailers and those new to online sales to give regular consideration to protecting their brands online and to ensuring that their online terms and conditions are legally compliant and drafted to protect their best interests.

Protecting your Brand online

As with all other advice on brand protection, the first thing that I advise clients to do is to register their trademark as soon as possible. Trademarks are the best form of registered brand protection yet devised and, although brands cannot register a single global trademark, it is nevertheless advisable to try to register wherever they envisage selling.

Of course, as well as bringing your brand to potential customers the world over, ecommerce will also introduce your brand to another, less savoury audience – the intellectual property infringers of the world.

Technological steps should be taken to protect your brand online, and you should make use of encryption, copy protection and other similar technologies to protect your trademarks and logos on the site.

For those starting out, an appropriate domain name should be selected: choose your brand name plus a top-level domain (e.g .com, etc), depending on your target market. The domain name market is a first-come-first-served market, so it is prudent to apply as soon as you have decided on a brand name.
For added protection, consider registering phonetic variations and potential misspellings. This is especially true with unusual brand names.

Brand owners should also use technology to maintain as much control as possible over the ability of third parties to copy or download content or to provide unauthorised links or to link the site to others without your permission.

Online Terms & Conditions and the law

When selling online, there is an additional layer of regulation, which places a proliferation of rights in the hands of the customer while generally making life difficult for the seller.

The most notorious of these is the right to cancel during a “cooling-off period”. The idea behind this was to give buyers the opportunity to try the garment on when buying online, as they would in a shop, before they finally decide whether they want to keep it or not. The sting in the provision, found in the Distance Selling Regulations, is that if customers are not informed of their right to cancellation the buyer has a right to cancel up to three months and seven days after the date of the order. Upon cancellation the seller must refund the customer within 30 days of receiving notice of cancellation irrespective of whether the customer has retuned the goods!

Intimate apparel businesses have long relied on an exemption in the regulations for “Goods which by reason of their nature cannot be returned”, but the Office for Fair Trading and the DTI have stated that this exception only applies where “returning the goods is a physical impossibility or where they cannot be restored in the same physical state as they were supplied however they are cared for.” The guidance goes on: “Thus while this exception may apply to items such as latex or nylon clothing which could become distorted once worn, we do not see the exception being applied to lingerie in general.”

A properly drafted set of online terms and conditions with a compliant but detailed returns policy emphasising the care customers must take with the garment (including non-removal of hygiene strips etc) and packaging means the “cooling off period” will be just seven days.

Next, consider the privacy policy. This is not a legal requirement, but a well-drafted privacy policy is a helpful shield in protecting the e-tailer from claims under the Data Protection Act in handling customer data.

Having negotiated a steady course between the Scylla of the “cooling off period” and the Charybdis of the Data Protection Act, the intimate apparel e-tailer must contend with a plethora of other regulations under which it is obliged, amongst other things, to give full identification of itself – including company number, VAT number, email address and so on – on the site; and, if your site uses cookies, users must be provided with clear, comprehensive information about the purpose for which they are used, and must also give consent.

There are of course risks in selling intimate apparel online. But with well-drafted terms and conditions, and proper protection, your business stands every chance of joining the growing list of lingerie e-tail success stories.

The Checklist:
1) Trademark your brand and logo.
2) Select your domain name, phonetic variations and misspellings.
3) Use technology to protect your intellectual property, from trademarks to downloading images.
4) Draft online terms and conditions with a detailed returns policy.
5) Draft a privacy policy to protect you from claims under the Data Protection Act.
6) Identify the company online, and alert visitors to your use of cookies.




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