Brexit: Keep calm and carry on – No changes for trade marks for now…

By now you will have seen that the UK has voted to leave the EU. This will inevitably have wide ranging consequences for businesses operating in the EU and beyond.

The first point that must be made is that nothing changes overnight. Under the Lisbon Treaty, there is a two year negotiation period before the UK leaves the EU - and that period will only start once the UK officially notifies the EU of its intention to leave, which may not happen immediately. This means that European Union trade marks (EUTMs) and Registered Community designs (RCDs) will still give protection in the UK until at least June 2018, possibly longer.

When the UK does leave the EU, it is almost inevitable there will be some mechanism for EUTMs and RCDs to be "converted" into UK rights. It seems inconceivable that all protection currently given by EUTMs and RCDs would be allowed to just disappear overnight when the UK leaves the EU. As a result, the owners of existing EU-wide registered rights should not re-register these rights in the UK at this point: it should be possible for the filing dates of their existing rights to be maintained in some way. However, it is unclear how the conversion mechanism will operate, or whether there will be a fee payable to the UK IPO. Whatever the mechanism involves, it will be a huge administrative task as there are more than a million EUTMs that could potentially be converted into UK rights! 

For trade mark and design owners filing new applications now, there is a choice: apply EU-wide and "convert" those rights into UK rights later; or file both UK and EU-wide applications now, to avoid having to rely on the conversion mechanism. Whichever option is chosen, EUTMs and RCDs continue to be the best way of protecting trade marks and designs in the EU in most circumstances, so businesses should continue to use these systems – and that won't change even after the UK has left the EU.

Bird & Bird has produced a series of briefings on the implications of Brexit - for more information see our Brexit portal and our note on the intellectual property implications of Brexit.

We will, of course, provide regular updates as the exit negotiations develop.

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