No Deal Brexit: EU trade mark protection

04 Feb 2019

The UK Government has confirmed that all EU registered trade marks will enjoy the same rights and protections afforded by the current EU regime in the event of a no deal Brexit by providing an equivalent right for EU trade marks in the UK. This new, equivalent right will come into force upon the UK’s exit from the EU in a no deal Brexit scenario.

This means that all EU trade marks, post a no deal Brexit, will be treated as if they had been applied for and registered in accordance with UK law and the UKIPO trade mark registration process. The same protection and enforcement rights that the mark holder would have enjoyed prior to Brexit (as a consequence of having an EU mark) will apply post Brexit. The Government has also confirmed that UK rights in any EU mark can be assigned and licensed independently from EU rights, potentially adding value to the mark.

Whilst EU trade marks will initially be afforded protection, upon expiry of the mark they will become subject to a separate renewal process in accordance with the UK trade mark regime. The UKIPO trade mark fees will apply, in addition to any EU renewal fees.

The guidance issued by the UK Government states that there will be little by way of administrative work in granting the new UK trade mark right. EU trade mark holders will be notified that the new UK right has been granted by publication of a notice on the Government website. Once this notice has been published the EU mark will benefit from the new UK right – there is no application process or form filling to be done.

An EU trade mark holder will have the option to opt out of this arrangement and therefore not receive the protection afforded by the new UK mark. However, as there is no cost attached to the transition, it seems unlikely that EU trade mark holders will opt out. A preferred option of EU mark holders may be to take advantage of the new UK right and simply let the registration expire in the UK should the mark holder decide there is no need for a separate UK mark.

There is however a degree of uncertainty for those trade mark holders currently applying for an EU trade mark as they will have to decide if a separate application to the UKIPO is required if the EU registration date is post Brexit.  

For further information on the subject, the UK Government guidance can be found here. For advice on all aspects of trade marks from registration through to enforcement, please contact us for an initial discussion on how best to protect your mark.

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