MARQUES Publishes Position paper on BREXIT

November 2017

MARQUES, the European association representing the interests of brand owners, has published its position paper on Brexit.  

In the paper, MARQUES sets out three key objectives:

“MARQUES believes that the governments of the UK and EU27 Member States and the EU Commission need to provide early certainty to these businesses in respect of three key objectives, namely that, at the time of and in consequence of Brexit:

1) There will be no loss of their existing proprietary intellectual property ("IP") rights and no diminution in the level of IP protection in the UK and EU27 Member States post-Brexit;

2) Businesses will not have to incur any, or at least any material, costs to maintain their existing rights; and

3) There will be no, or as little as possible, administrative burden on businesses in retaining those rights.”

These objectives are broadly the same as the EU Commission Paper on IP and Brexit and seem in agreement with CITMA, but the level of detail which MARQUES have provided is probably the greatest of all of the interested parties in the IP and Brexit process to date. 

MARQUES’ position and proposals for taking the BREXIT process forward is in line with the position papers put forward by the EU Commission and indeed CITMA in the United Kingdom. However, MARQUES did comment that the EU Commission Paper had unduly focussed on the rights in the UK post Brexit and not IP structures in the remainder of the EU post Brexit.

At the time of writing, neither the UKIPO nor EUIPO had provided any detailed papers on IP post Brexit, but it is not unreasonable to expect that their position will be in line with those expressed by MARQUES, CITMA and the EU Commission.  However, one serious concern to MARQUES is that, with less than 18 months until the UK is due to leave the EU, the parties have not commenced any dialogue at all about these matters, many of which are largely administrative and functional.  MARQUES also expressed concern that there does not appear to have even been exploratory talks between the UKIPO and EUIPO – “This is very damaging to business interests.  In particular, it seriously undermines short and medium term confidence in the trade mark, design and geographical indicator systems of Europe.”  The delay in the dialogue between the UK Government, UKIPO and EUIPO on IP would presumably largely be down to the slow, if not stalled, state of the negotiations at a higher level on the cost of Brexit, the Irish border question and protection of EU nationals legal rights in the UK. Negotiations on trade and presumably IP cannot start until these three issues are broadly agreed.

Interestingly it seems MARQUES is not in favour of ‘international exhaustion’ being adopted by the UK post Brexit, based on the assumption the UK will not be part of the EEA.  Perhaps this position should not be a surprise given that MARQUES represents brand owners, but it will be interesting to see what position the UK Government will take on the same issue. Ultimately the decision on exhaustion of rights in the UK will be a political decision, and it seems likely that a free market Conservative Government, combined with the now absence of large French and Italian luxury goods producers influencing the decision, could mean the UK does indeed adopt international exhaustion.

This update was prepared by HGF Partner Lee Curtis.  If you would like further advice on this or any other matter, please contact Lee. Alternatively, you can contact your usual HGF representative or visit our Contact page to get in touch with your nearest HGF office.