On 23 June 2016, Great Britain will be voting on the country's future in the European Union. A majority decision in favour of the exit will most probably result in Great Britain leaving the European Union in the foreseeable future. Trade mark and design law is one of the areas that is extensively harmonized through legal concepts such as the EU trade mark and the Community design. The disentangling of Great Britain from this system may therefore have far-reaching consequences for owners of trade marks and designs in the EU. We have compiled some of the most pressing issues.
WHAT IMMEDIATE CONSEQUENCES WILL A "YES" FROM THE BRITISH PEOPLE TO BREXIT HAVE IN EUROPEAN TRADE MARK AND DESIGN LAW?
The outcome of the referendum will have no immediate consequences, as the election does not immediately affect the legal position of Great Britain as an EU member state. For this reason, EU trade marks and Community designs will initially retain their scope of protection, and it will still be possible to register them after 23 June 2016 with protection for Great Britain. There will also be no changes for legal proceedings initially.
WHAT INDIRECT EFFECTS WILL THE BRITISH PEOPLE'S EXIT FROM THE EU HAVE FOR EXISTING EU TRADE MARKS AND COMMUNITY DESIGNS?
Following a positive vote to leave, Great Britain and the EU will enter into exit negotiations, during which talks will take place on the disentangling of Great Britain from the EU. During the course of these talks and depending on the results of further negotiations, it will become apparent which specific effects BREXIT will have for EU trade marks and Community designs. One thing that is clear at the present moment in time is that the scope of protection of EU trade marks and Community designs will no longer cover the territory of Great Britain in the event of an exit. It is expected that Great Britain will create an equivalent national counterpart for existing registrations. It is, for example, conceivable that, in addition to the EU trade mark, it will be possible to register a national trade mark with the British Trade Mark Office (IPO) with identical scope and the same priority. Under what conditions this will take place and whether additional costs will be incurred cannot be foreseen at the present moment in time.
HOW WILL REGISTRATIONS FOR EU TRADE MARKS AND COMMUNITY DESIGNS HAVE TO BE HANDLED IN FUTURE?
As from the actual exit of Great Britain from the EU, the scope of protection of an EU trade mark or Community design registration will no longer cover the territory of Great Britain. It will therefore only be possible to acquire trade mark and design protection for Great Britain via national registrations or appropriate international registrations. It remains to be seen how applications will be handled that are initiated during the exit negotiations. As Great Britain was still an EU member state at the time of the application it is again likely that owners of such applications may obtain trade mark and design protection for Great Britain through parallel national registrations.
WHAT EFFECTS WILL BREXIT HAVE ON LEGAL PROCEEDINGS IN TRADE MARK AND DESIGN LAW?
As part of the exit negotiations between the EU and Great Britain, there will also be clarification of how ongoing and concluded legal proceedings with a reference to the EU will be handled (e.g. submissions of British courts to the ECJ, EU-wide injunctions). It is clear that, upon completion of the exit, it will no longer be possible to obtain legal titles with a protective effect for the EU before British courts. In all probability, the scope of protection for judgements or decisions obtained in (other) EU member states with protection for the entire EU will similarly no longer extend to Great Britain. It will be interesting to see how the scope of protection of already legally binding titles with EU-wide protection will be assessed with respect to Great Britain after the exit.