Key points to understand about Brexit and its immediate impact in relation to trade marks
Yesterday, 29 January 2020, the European Parliament ratified the Withdrawal Agreement between the United Kingdom (UK) and the European Union (EU), completing the last of the formalities required to implement the UK's exit from the EU. As a result, the UK will leave the EU at 11.00 pm GMT on Friday 31 January 2020 in accordance with the terms of the Withdrawal Agreement.
Thus, the possible "no-deal" Brexit which would have disrupted so many businesses, will not now take place on 31 January 2020.
EU trade mark law will remain in force in the UK for eleven months, until 31 December 2020
Under the Withdrawal Agreement, a transition period (in Brussels terms) or an implementation period (in Westminster terms), will come into force until 31 December 2020. During this time EU rules and regulations as they currently apply in relation to trade marks (and in fact generally) will remain the same. Therefore, until 31 December 2020 the UK will continue to be part of the EU trade mark (EUTM) system, EUTMs will continue to have effect in the UK, and judgements of the Court of Justice of the European Union in relation to trade mark matters will continue to apply in the UK. EU designations of International (Madrid Protocol) Registrations (IRs) will also continue to have effect in the UK during this period in the same way as they do today.
The transition period is unlikely to be extended
Section 33 of the European Union (Withdrawal) Act 2020 in the UK, which recently received Royal Assent and so is now law in the UK, makes it clear that it would be unlawful for a UK Minister to ask for the transition period to be extended after 31 December 2020. The purpose of placing this prohibition in the legislation is to legally bind the UK Government. Unless this clause is repealed (which is unlikely), any extension to the transition period beyond 31 December 2020 which might be agreed would be likely to be successfully overturned in a UK court. Businesses should therefore plan on the basis of the transition period coming to an end on 31 December 2020.
EU and UK trade marks after 31 December 2020
The Withdrawal Agreement requires the UK to create, from the end of the transition period, equivalent registered rights in the UK for each registered EUTM and also for each EU designation of an IR which existed immediately before the end of the transition period. In its preparations for a possible no-deal Brexit during the course of the last 18 months, the UK government put in place regulations and systems at the UKIPO which would have ensured the immediate creation of such equivalent trade mark rights in the UK in the event of a no-deal Brexit.
These regulations have been amended so that they now come into effect at the end of the transition period, on 31 December 2020. Therefore, in the absence of other terms being agreed between the UK and the EU in the trade deal negotiations between now and 31 December 2020, it is expected that the regulations will apply in the UK as of 11.00 pm on 31 December 2020.
While the regulations are comprehensive, as with all areas of law there are many points of detail to consider, and depending on their particular requirements trade mark owners may wish to take action in relation to some of these in advance of 31 December 2020. DLA Piper will shortly publish a full explanatory paper for trade mark owners in relation to such points of detail.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.