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What a “No Deal” Brexit implies for Trade Marks and Community Designs

Though it is unlikely that the UK will leave the EU without an agreement, otherwise known as the “no deal” scenario, as both parties are mutually invested in securing a negotiated outcome. However, the UK is preparing for all possible scenarios of Brexit, including the so-called “no deal” scenario. The UK gov’t started to release technical guidelines to help businesses and citizens properly prepare for all scenarios, so as to ensure as smooth as possible transition.

One matter that must be taken into consideration in the case of the “no deal” scenario is how this scenario would affect the registered and unregistered Community designs, as well as the correspondence addresses and confidentiality for UK trade marks.

In terms of registered EU trademarks and registered Community designs, they are currently covered by the intellectual property rights that have been granted by the EU Intellectual Property Office. All businesses, organizations and individuals owning or having registered an EU trade mark or Community design are thus protected across all EU member states. The trademarks and registered designs can also be granted through the international Madrid and Hague systems, both of which are recognized by all EU member states, the UK included.

If there is no deal, following March 2019 the UK government has stated that they would ensure all property rights in existing registered EU trade marks and Community designs will continue to be protected and enforceable in the UK as long as an equivalent trade mark or registered design in the UK can be provided. The businesses, organizations and individuals with ongoing open registrations for trademarks and designs in the EU at the time of the UK’s exit will have a nine-month grace period to apply for the same protections in the UK. These applications can be done either online or via post, and can be found here for trademarks and here for registered designs. These applications are subject to the cost specified in the UK fee structure. Any existing right holders of EU trademarks and registered Community designs will be granted a new UK equivalent right at the time of the UK’s exit and will be provided with minimal administrative burden.

In terms of unregistered Community designs, these are currently protected as intellectual property rights governed by EU regulation, thus the right holder of an unregistered design is protected across the EU member states, the UK included. All unregistered designs are provided with three years of protection from the date that the design was first disclosed within the EU. This is separate from the UK’s own design rights, which provide a period of protection for product shape and configuration for up to fifteen years.

If there is no deal the UK government will ensure that all unregistered Community designs exiting at the time of Brexit will be protected and enforceable in the UK for the remaining period as before. Additionally the UK will create a law that will provide the same characteristics as the EU law for unregistered designs. There will be no required action on the part of the right holder in order to obtain the new right issued to all unregistered Community design holders.

Another matter to be taken into consideration are the correspondence addresses and confidentiality for UK trademarks and designs. Currently, it is expected that the UK’s withdrawal will affect the rights of UK businesses, organizations and representatives to represent themselves or their chosen representative in respect to EU trademarks and registered Community designs. However, the notice covering the rights of registered and unregistered trademarks and designs does not cover this, and instead advises businesses to contact their current representative to make further arrangements for future relationships.

The notice also does not cover what to do in case of address, as businesses are currently required to supply an address when applying for trade makes and designs and so most UK right holders generally will supply a UK address. However, there are a few businesses with supplied addresses outside of the UK, and thus are recommended to seek legal guidance in this matter.

In preparation for Brexit, and the possible scenario of a “no deal” situation, the UK government plans to work closely with businesses in the coming months to properly prepare them for the transition.



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