The immediate priority should be to review your EUTM portfolios. You should identify the marks that are most significant to your UK business such as house marks or key brands that you market in the UK.
This note describes the effect on EU Trade Marks (EUTMs) and Registered Community Designs (RCDs) in the event the UK leaves the EU without an agreement (a “No Deal” scenario). It provides some practical points for holders or prospective holders of EUTMs and RCDs to consider. Except to outline some of the alternative political possibilities to a No Deal exit, this note will not speculate on the political process which is unpredictable.
As well as the No Deal scenario, there are other ways that the Brexit process could unfold. For example, the proposed Withdrawal Agreement could be accepted by parliament. Alternatively, the process could be delayed to allow further negotiations between the UK and EU over the currently proposed agreement, some other arrangement or even a second referendum on whether the UK should leave the EU at all. The eventual outcome is a political matter and there is a great deal of uncertainty surrounding that.
The earliest date the UK could leave the EU is 29th March 2019. Brexit is most likely to occur on this date in the event of a No Deal. If the proposed Withdrawal Agreement secures parliamentary support in the UK prior to 29th March 2019, it is likely that the UK and EU would agree an extension of the 29th March deadline in order to allow the Withdrawal Agreement to be implemented. It is also possible that the UK could reject both the Withdrawal Agreement and a No Deal. In that situation, the UK may seek the EU’s consent to extend the 29th March 2019 deadline to explore other options. If the EU was amenable to an extension, it is still unclear how long an extension the UK would seek and what the EU would consent to.
In any event, it is important to remember that throughout the process both the UK and the EU have repeatedly offered assurances that the impact of Brexit on users of the EUTM and RCD systems will be minimised and that there will be no loss of rights as a result of Brexit. More details of what will happen to IP rights are now being setting out what will happen in a No Deal scenario. The following tables summarise what we know about the effect of a No Deal Brexit on EUTMs and RCDs (although if the proposed Withdrawal Agreement was accepted, we would expect these provisions to be implemented in substantially the same way following a longer transition period).
EUTMs in the event of a No Deal
This information is based on UK legislation that will take effect upon Brexit and also on statements made/published by various UK and EU governmental bodies:
In respect of EUTMs designated via the International Registration system, there is draft UK legislation that mirrors the position above. However, the UK continues to work with WIPO to determine whether the comparable UK rights can be created within the International Registration system.
The domestic UK trade mark system will be unchanged upon Brexit and will remain aligned with the rest of the EU in terms of its legislation. It is notable that the UK implemented the updated trade mark directive in January 2019 which harmonises trade mark law across the EU.
RCDs in the event of a No Deal
This position for RCDs is essentially the same as for EUTMs but there is currently only draft UK legislation in place. This information is based on that draft legislation and also on statements made/published by various UK and EU governmental bodies:
For holders of RCDs designated via the International Registration system, there is draft UK legislation that mirrors the position above. However, the UK continues to work with WIPO to determine whether the comparable UK rights can be created within the International Registration system.
The domestic UK design system will be unchanged upon Brexit and will remain aligned with the rest of the EU in terms of its legislation.