Brexit or Bremain- A trade mark perspective

Next Thursday (June 23) the UK heads to the polls for a referendum on whether the UK should remain a member of the European Union. While a ‘remain’ vote would maintain the status quo with respect trade marks, an exit would certainly have a significant impact on existing trade mark and intellectual property practice.

An exit would mean that the protection offered by EU trade mark and Community registered designs would no longer extend to the UK. It is presumed that If the United Kingdom were to leave the Community, presumably the provisions of the regulation and consequently Community trade mark registrations would no longer have any effect – unless new legislation were provided by the European Union or indeed the UK Parliament. Community trade mark registrations would thus effectively shrink in scope, leaving their owners with no legal protection within the United Kingdom unless they also owned UK trade mark rights – either via statutory UK trade mark registrations or based on use in the United Kingdom.

What this would mean for trade mark owners (whether in the UK or international companies doing business in the country) is that – if they don’t currently hold a national registration and wish to continue their coverage in the UK – a national registration will be required. Perhaps good news for the UK IPO.

The impact for law firms in the UK will be somewhat greater. In theory, an exit would mean that UK based practitioners would no longer be able to represent clients before the EU Intellectual Property Office. In an advisory issued by The Institute of Trade mark Attorney (ITMA) states: “It is reasonable to suggest that a big percentage of the EU trade mark and design work currently undertaken by the UK profession, including a large volume instructed from overseas, would move to attorneys within the rest of the EU.”

A silver lining for law firms is that businesses in the UK and which have, to date, been reliant on EUTM protection will likely file in the UK. This could result in UK filing wok replacing some of that lost at the EUIPO – but as ITMA observes, many such applications may be made via the Madrid Protocol.

One possible positive for UK law firm practitioners with respect the representation of clients before EUIPO would stem from the UK doing a deal to remain in the European Economic Area (EEA). Under the recently enacted European trade mark reforms, the right to act as professional representatives before the office was extended to those qualified in one of the member states of the EEA. In the same way that professionals from Iceland, Liechtenstein and Norway are now able to practice at the EUIPO, should the UK be in the EEA this right would extend to UK practitioners.

Much, then, will depend on negotiations after the vote and, should the UK electorate vote for a Brexit, things won’t change overnight. As to how likely a Brexit actually is, the latest polls suggest that the vote is on a knife edge, albeit with a leaning towards an exit. On Friday, a poll for The Independent suggested that the ‘leave’ camp had opened up a 10 point lead, with 55% of voters in their corner. Today the same outlet acknowledged that the opinion poll landscape is a confusing one, after an Opinium survey in The Observer had the ‘remain’ camp ahead by two points and a YouGov poll in The Sunday Times ‘leave’ ahead by one point. It’s conclusion? The opinion polls “are basically 50-50”.

In that respect, the debate on the impact of a Brexit on the trade mark community mirrors that in economic circles – the choice being to stay with the certainty of the status quo or leap into the relatively unknown.

share this Article

Share on facebook
Share on twitter
Share on linkedin
Share on whatsapp
Share on email

Recent Articles