The European Commission and EUIPO recently issued statements that, if the UK withdraws from the EU on 30 March 2019, EU trade marks (EUTMs) and Registered Community Designs (RCDs) will no longer have effect in the UK.

It is important to see that headline statement in context since a key point is that continuity of protection will depend on UK law. The EUIPO's Q&A* acknowledges this, albeit in a footnote.

The UK government has not published its position, but there is reasonable confidence among stakeholders that it will legislate to replicate all current EUTMs and RCDs as UK rights.

In the context of the above, it is encouraging that the UKIPO has just published its proposal to implement the 2015 European Trade Mark Directive (the source of the 2016 changes to the EUTM regime) into UK law, and taken the position that "The implementation of the Directive is required as part of the United Kingdom's obligations arising from its membership of the European Union and until the UK formally leaves the European Union all of its obligations remain in force. This will make it easier and cheaper for businesses to use, as a result of fewer differences in procedure for registration of trade marks in national offices".

Negotiations between the UK government and EU Commission which potentially might result in next year's withdrawal date being deferred are, of course, ongoing.

For now, our key recommendations are still:

  • Continue filing EUTMs in the expectation that unchallenged applications will be registered well in advance of the earliest possible withdrawal date and, at the withdrawal date, rights will be entered on the UK trade mark register.
  • Consider also filing UK applications if litigation is contemplated or if an EUTM is being attacked by a third party on grounds which would be weaker (or would not apply) in the UK.
  • Renew UK trade mark registrations, even if seniority was claimed from these into EUTMs.

*The EUIPO's Q&A can be seen here

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