Brand protection and Brexit

04 October 2019

Brexit planning for brand owners

While we wait for Boris Johnson to negotiate his Brexit deal with the EU, a further delay or a no-deal Brexit remain possible outcomes on October 31st. Brand owners need to be aware of the consequences for each scenario, so here we share our trade mark attorney guidance on the three possible scenarios:

Another Brexit delay

A further delay will extend the status quo, leaving the UK covered by EU trade mark registrations and UK trade mark attorneys still able to file new EU trade marks across all 28 countries under the existing European Union Trade Mark (EUTM) system.

Brexit deal

There are already extensive terms included in Theresa May’s withdrawal agreement that have been accepted by the EU, setting out the intended provisions to be applied if an agreement is reached. We would assume, but can’t be sure, that Boris Johnson’s deal would include similar arrangements, with a transition period through 2020. For more detail, we will have to wait and see.

No-deal Brexit

Under a no-deal Brexit all EUTMs and design registrations will cease to provide protection in the UK, because EU regulation will no longer have effect in the UK and new EUTM applications will only cover the remaining 27 EU countries.

However, in the event of no-deal, the UK Government has passed legislation to ensure that all existing EU trade mark and design registrations continue to be protected in the UK because, on the day of exit, all EUTM registrations and Registered Community Designs (RCD) will be divided into separate UK national and EU 27 registrations.

Pending EUTM and RCD applications will not be divided and must be refiled in the UK within a period of 9 months from exit day. The usual fees and forms will be required, but the original filing and priority dates will all be retained.  Therefore it is not necessary to double file for both UK and EU registrations unless there are specific reasons to do so, such as potential EU oppositions, or the need for a swift UK registration.  Nucleus IP’s trade mark attorney advice would be to make sure your brands are secured where you trade so that your protection is in order on Brexit day, as processes may be delayed after this date due to the volume of work to be undertaken.

It would also be advisable to check commercial agreements such as trade mark co-existence agreements, as any references to the EU in relation to territory, governing law and jurisdiction may need to be revised to specifically include the UK.

Need guidance?

If you have any questions or require guidance about your brand’s trade marks or design rights relating to Brexit, please don’t hesitate to contact one of our trade mark attorneys at Nucleus IP, one of London’s leading trade mark experts.

Peter Matthews
Nucleus Founder & CEO
October 2019

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