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An update on Brexit and its implications on EU and UK Trade Mark Protection

January 2019

16 January 2019 – the deadline for the UK to leave the EU on 29 March 2019 is fast approaching and there continues to be political uncertainty over the terms of any Brexit.

The current political position regarding Brexit is frustrating and unfortunate. In our view, political developments could lead to any one of four potential scenarios and for each scenario, the impact on UK trade mark protection is understood and established:

Scenario 1: A political deal is reached between the UK and the EU on how to exit the EU before 29 March 2019. In which case, a transitional period begins on 29 March 2019 and lasts until at least 1 January 2021, during which time nothing changes at all. The UK continues to be part of the EU IPO.

On 1 January 2021, UK TM registrations will automatically be created which mirror their EU TM counterpart registrations. For pending EU TM applications, owners would have 9 months to decide whether to create a pending UK TM application which mirrors their EU application.

Scenario 2: No political deal can be reached between the UK and the EU prior to 29 March 2019 and the UK leaves the EU (a “no deal” Brexit). In which case, the UK Government has reassured brand owners that it will follow the same process as Scenario 1 above.

This would mean that on 29 March 2019, UK TM registrations will be created automatically which mirror their counterpart EU TM registrations. For pending EU TM applications, owners would have 9 months to decide whether to create a pending UK TM application which mirrors their EU application.

Scenario 3: The 29 March 2019 deadline is extended in order to grant more time to break the current political impasse. This should enable a political agreement to be reached (similar to Scenario 1) or other options to occur, but in a longer and more manageable timescale. Until an agreed extended deadline, the present procedure and status of EU trade marks and applications would be maintained.

Scenario 4: The UK never leaves the EU and remains part of the EU IPO trade mark system. This would likely be via a new UK public referendum, deciding on whether to leave the EU or not. In this scenario, with the UK staying in the EU, then of course nothing would change for trade marks.

The UK trade mark profession and the UK IPO are prepared to deal with any political outcome and have the mechanisms in place to ensure UK trade mark protection is continued when/however Brexit takes place. Unfortunately, at this moment in time, the political situation means we are still unsure about when this will be.

We want to assure all our clients that in respect of all the scenarios set out above, HGF is ready and able to ensure your trade mark rights are maintained and protected through-out the EU and the UK and will take all necessary actions in this respect on your behalf.

With offices in five European countries, HGF is ideally placed to guide clients through any Brexit process for EU trade marks and to continue to handle all EU and UK trade mark, design and other intellectual property matters after Brexit, as we do now.

If you have any queries please contact your usual HGF Attorney, or David Potter, Head of HGF’s Trade Mark team at [email protected].

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