The end of the Brexit overhang for trade marks: review, refile and revoke.

On the 31^st December 2025, five years will have passed since the end of the Brexit transitional period on 31^st December 2020.

Why is this relevant?

For UK cloned trade mark registrations which came about as a result of the Brexit transition, this date marks the end of the period by which the use of the trade mark in the EU prior to the end of the Brexit transitional period is of relevance in the defence of UK non-use revocation actions. This cut off date also impacts EU trade mark registrations filed before 31^st December 2020, as use in the UK prior to the 31^st December 2020 will no longer be of relevance either in the defence of those registrations. However, for EU trade mark registrations the relevance of such use has been declining over time anyway based on the practice of the EUIPO. For UK cloned registrations, 31^st December 2025 is much more of a watershed.

A spring clean for cloned trade mark registrations?

Well for any company or individual looking to revoke blocking UK cloned trade mark registrations, owners of such registrations can no longer ‘fall back’ on EU trade mark use in the defence of non-use revocation actions.  So if you or your client is in such a situation, you should consider filing non-use revocation actions against such registrations from 1^st January 2026 onwards.

At the end of the Brexit transitional period, the UKIPO converted approximately two million EU trade mark registrations into cloned UK trade mark registrations. Now many of these registrations have lapsed, but many remain on the register.  The New Year is maybe a good time for a revocation spring clean!

Further, if you are in such a situation it may be wise to file new applications for your or your client’s mark(s) from 1^st January 2026. The owners of UK cloned registrations post 31^st December 2025 can no longer rely on EU use of the trade mark prior to 31^st December 2020 as part of proof of use in opposition proceedings, as essentially the clock has run out. Proof of use is calculated from the filing date of the ‘opposed’ application. Further on 1^st April 2026, official fees for UK trade mark applications will rise, so it would wise to file any such applications before then, if possible, to benefit from the old lower official fees.

Review your portfolio and evidence of use but beware of evergreening!

For brand owners, review your trade mark portfolio now particularly if you are the owner of cloned UK trade mark registrations. Although for UK trade mark owners, it is likely that you would also have had a ‘standard’ UK trade mark registration, as well as a cloned UK trade mark registration, that is not the case for all, particularly for non-UK brand owners who relied solely EU trade mark registrations to cover the UK prior to 31^st December 2020.

So, if you have a UK cloned trade mark registration think about use in the UK. Although commencing use in the UK solely for the purposes of defending a trade mark registration against non-use attack is not a valid defence to such proceedings, if the business is considering genuine use in the UK bring it forward and above all evidence it.  Also for the owners of cloned UK trade mark registrations which relied primarily on EU use to date to defend them, go hunting for evidence of UK use now with your business before it is lost in the mists of time and put it somewhere safe!

Simply refiling a UK cloned trade mark to start the non-use clock again would in all likelihood be considered ‘evergreening’ and thus not valid as that is considered bad faith, but you or your client can consider filing cloned trade marks in different forms and this maybe particularly appealing as over five years has passed since the end of the Brexit transitional period and rebrands and new logos may have been introduced.

Review, refile and revoke.

So, in conclusion review your trade mark portfolios particularly if they are made up of cloned UK trade mark registrations, consider potentially refiling such cloned trade marks in new forms and consider applying to revoke for non-use any blocking UK cloned trade mark registrations.

If you have any questions on the above, please contact the author Lee Curtis at lcurtis@hgf.com or your usual HGF advisor.

This article was written by Partner & Trade Mark Attorney Lee Curtis.