The UK government suffered a defeat of historic proportions on Tuesday 15 January in relation to its proposed Brexit deal, but survived a vote of no-confidence the next day. Despite these extraordinary events we are no closer to understanding where the Brexit process will go next or how long it will take to reach a conclusion.
In the middle of the political turmoil it is easy to lose sight of the fact that nothing has changed in relation to Intellectual Property. A link to our advice from December is set out below.
Some further guidance has issued since that note in the form of The Trade Marks (Amendment etc.) (EU Exit) Regulations 2018 (the ‘EU Exit Regulations’). This is still a draft statutory instrument, but it provides further clarity on some aspects of the position for trade marks after Brexit, whenever that happens, and the essential points remain unchanged from our previous advice:
- For EUTMs or RCDs granted before the effective Brexit date, protection would continue through creation of a comparable and enforceable UK right (‘comparable right’);
- For EUTM and RCD applications pending at the effective Brexit date, there would follow a 9 month period during which equivalent UK applications could be filed, retaining the effective EU application date. UK national application fees would be incurred.
The draft EU Exit Regulations, which focus on trade mark issues, also indicate:
- It will be possible to opt out of having the comparable trade mark right;
- Additional time will be allowed for the renewal of comparable trade mark rights which fall due for renewal in the six months after Brexit;
- Use of a trade mark in the EU prior to Brexit will be relevant to the comparable right in relation to non-use proceedings or establishing reputation; and
- Coexistence agreements, licences and the like which covered EU TMs will cover the comparable rights unless there is evidence that such documents were not intended to have effect in the UK.
There are many unanswered questions but, from an IP perspective, there is little to fear from a no-deal Brexit.