While a range of outcomes, including a departure under the terms of the current Withdrawal Agreement, remains possible, it is important for businesses to plan for a no-deal Brexit, in which the UK leaves the EU without a withdrawal agreement or other deal. Here we look at the potential impact of a no-deal Brexit on the protection of trademarks and designs.
In broad terms, if and when the UK leaves the EU, the position in respect of the protection of trademarks and designs in the UK will be as follows:
- Existing registered EU trademarks or registered Community designs will continue to be valid in the remaining EU member states;
- Protection of existing registered EU trademarks, EU Designations of International Registrations or registered Community designs in the UK will be through a new, equivalent UK right. The new UK right will be automatically created and will then be treated as if it had been applied for and registered under UK law. The UK right will come into existence at the moment the UK leaves the EU; and
- Applicants with a pending application for an EU trademark, pending EU Designation of an International Registration, or a registered Community design that has not achieved registration by the date that the UK leaves the EU, will be able to re-file in the UK for the new UK equivalent right retaining the same priority and filing dates as the pending EU application (or the pending EU designation), provided that the application is made within nine months from the date of exit. The new UK mark will also benefit from any UK seniority claims in the pending EUTM applications.
While the above is a statement of the general position, there is also much detail to be aware of in relation to trademarks in the event that the UK leaves the EU without an agreement.
The UK Government has published guidance on the intellectual property implications of a no-deal Brexit for trademarks and designs. Online general no-deal guidance is also available from the UK Government and the European Commission.