Following the UK government’s notice on trade marks and designs if there is no Brexit deal (the “Notice”) and the increasing likelihood of the UK leaving the EU with no deal as to the future trading arrangements with the EU, clients should be reviewing their trade mark and designs portfolios now and reconsidering their brand protection strategy for the UK.

The Notice, published on Monday, is one of a series of notices the government has published recently setting out what would happen for key industries in the event of a no-deal Brexit and what industry should do now to prepare.

The government’s aim is to ensure continued recognition of existing unitary rights (EU trade marks and community designs) by creating equivalent protection under UK law. This has been agreed in principle with the EU as part of the draft Withdrawal Agreement. However, the government has now set out what will happen if the Withdrawal Agreement is not agreed by 29 March 2019 and the UK leaves the EU with no deal.

The Notice indicates that, even in the event of a no-deal Brexit, the government still intends to ensure continued protection for unitary rights by creating equivalent protection under UK law that will arise automatically without any involvement or action from the rights holder. However, where applications for unitary registered rights are pending at Brexit, the government has now said that, in the event of a no deal Brexit, applicants will have to re-file any pending EU applications, within nine months of Brexit day, as applications for UK equivalent rights.

Our recommendations:

• If you have existing UK trade mark rights or registered designs, which you were considering abandoning or claiming seniority from in respect of an equivalent EUTM, don’t abandon them!
• Factor UK applications into your existing filing strategies and consider filing them now in parallel with your EUTM and Community registered design applications, or as a separate designation within a Madrid or Hague application.

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