It's been several months since the news of the Brexit shook the international markets in general and the European Union in particular. Last year, we let you know that this may impact you if you have a EUIPO Trademark in our earlier article Brexit: What Impact on European Trademarks and Patents?
It feels that after the initial turmoil nothing has changed, and we still don't know what will happen with the agreements existing between Brussels and London.
Our clients keep asking us, with good reason, if we have any idea of what will happen with their trademarks. We offer trademark registration in the United Kingdom, but we don't want our clients to spend money needlessly.
In this moment of uncertainty, we decided to go directly to the source, the European Commission. We know it was unlikely that they would be able to provide us with any information, seeing how early it is in the negotiations. However, we always seek to pursue our clients’ best interests and it's always worth trying.
Our Question to the European Commission
[…] we would like to advise our clients about the future regarding Brexit and how it’ll affect trademark protection. The protection granted by Community Trademarks extends only to members. From this point of view community trademarks will stop offering protection in the UK immediately after the exit.
We tried to go to the basics and read what the law says, but the only article that regulates the situation is Article 50 of the Lisbon Treaty. Unfortunately, there’s a lot of uncertainty, and it doesn’t mention at all community regulations in Intellectual Property protection.
Our clients trust us to get the best support and advice. With that on mind we would like to know which of these scenarios is being negotiated:
1 – An agreement is reached and UK remains in the EUIPO.
2 – No agreement is reached; Community trademarks stop offering protection in the UK.
3 – An agreement is reached; current trademarks are valid. Future ones will only cover member countries.
Our customers have placed a trust in our company (and you as an agency) and we feel obligated to inform them on how they can maintain their current protection.
What should we do to offer our customers the same level of protection?
Their response was reasonably quick, but disappointing, within a week we received the following short message.
EU legislation will continue to be fully implemented in the United Kingdom and in the United Kingdom until it is no longer a member of the EU. The outcome of the referendum itself has not changed this. In accordance with Article 50 of the Treaty on European Union, a Member State wishing to leave the EU must notify the European Council in advance of its intention to withdraw from the Union. Until that withdrawal, that State remains a member of the EU with all the rights and obligations of a Member State and the EU Treaties continue to apply.
Therefore, we are not in a position, at this stage, to comment further on the issues it raises.
What should you do to protect your Trademark Rights?
It's clear that there is yet much uncertainty as to what will happen. We are hesitant, to say the least, to advise our clients regarding this issue, but if Brexit finally becomes a reality there is some jurisprudence that may be applicable to foresee how this will resolve.
After the division of the Soviet Union, each of the different republics gave birth to a different Patent and Trademark Office. Each of these offices accepted Trademarks from the Former Soviet Union, while not allowing new applications for the whole USSR.
A possibility is that current trademarks in the EUIPO will have validity in the UK, but new applications after the final break (2 years after article 50 is enacted) will simply not include the UK.
While far from ideal, this course of action means that the protection already paid for by companies and individuals remain the same, which we believe is fairest situation. This is of course something that the EU and UK will have to agree on.
This scenario would only be considered if the UK leaves the single market. Our first scenario presented in the question to the European Commission considers the possibility that in the end there will be some kind of agreement, not just for Intellectual Property, that will maintain some of the institutions.
Whether the UK is included or not, registering your trademark in the Europea Union still provides protection in one of the largest markets in the world, and you can always register your trademark in the United Kingdom too.
We will of course keep you informed about any changes in the situation.