Brexit – What will happen to your European Trade Marks?


There has been a lot of speculation regarding the position of European Trademarks (“EUTMs”) and the implications for brand owners regarding the status of a UK rights once the UK formally leaves the EU on 29th March 2019.

On 19 March 2018, the European Commission published its first draft of the Withdrawal Agreement, setting out the terms upon which the UK will leave the EU.

The good news is that the owners of any EUTMs which have been registered before the end of the transition period – 31st December 2020 – will automatically be entered onto the UK Intellectual Property Office registry as a UK registration with the same scope of protection and filing priority dates and without the need for re-examination. The Trade Mark will continue to cover the remaining 27 EU countries.

The draft Withdrawal Agreement expressly considers the status of pending EUTM applications. It proposes that, where there are existing applications for EUTMs in progress at the end of the transitional period, the applicant will have 9 months in which to file an application for an equivalent trade mark in the UK.  Any such UK application will be given the same filing date as the EUTM application on which it is based. This means that if you want to avoid refiling the application in the UK after the transition period, you should aim to file the EUTM as soon as possible to ensure that these is sufficient time for your mark to be registered.  Timings vary but you should allow around 8 months from the start of the process for EUTM registration so it would make sense to commence the EUTM application sooner rather than later.

A further consideration for holders of EUTMs which have been used exclusively in the UK is that when the UK leaves the EU, those EUTMs may become vulnerable to successful revocation on the ground of non-use because use in the UK will no longer be taken into account.

It is important to note that the agreement is not yet finalised and further changes could occur. In the meantime, those businesses with the resources available and where the UK is their main market may wish to consider filing parallel UK applications now (corresponding to their current EUTM), in order to safeguard their position.  This tactic would secure the certainty of their rights and avoid any complications or rush in ‘converting’ in the future.

If you have any questions relating to this article or require any advice, please contact Pippa Aitken Senior Associate in our Company and Commercial team, on 0191 226 7842 or at pippa.aitken@sintons.co.uk.


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