David Cameron’s attempt to renegotiate a new settlement between Britain and the other 27 countries of the EU is a hot-news topic, but very little has been written about the impact of a Brexit on Trade Mark law in the UK. As most of our clients will know, whilst it is possible to protect trade marks in the UK by filing national applications at the UK IPO, it is also possible to protect them in the UK via the Community Trade Mark (CTM) system – soon to be renamed the EU Trade Mark system. The CTM system, operating in parallel with the national filing systems in each EU country, has been remarkably successful, given that it is a relatively inexpensive way of protecting marks in all 28 member states. Indeed, many of our clients have opted for the CTM system over the years precisely because of the cost benefits.
If the UK were to leave the EU, the option of protecting trade marks in the UK via the CTM system would disappear. But what would happen to existing CTMs? We have the example of how the CTM system was affected by new member states joining the EU – in those cases, complex transitional measures were implemented to seek to adjudicate on the trade mark conflicts that would inevitably arise. Little has been written about what would happen if a country were to leave the EU. Given Britain’s complex relationship with the EU, there is likely to be a long transitional period, and events would not move quickly. But one option may be for existing CTMs to be divided into CTMs and national UK marks, as an automatic process, or as a process which requires the Trade Mark owner to make an application to do so. And once the CTM has been divided in this way, it is clear that any remaining CTM registration would not be sustained on the basis of use in the UK, and would have no further effect in the UK. Nevertheless, there will likely be vigorous negotiation on precisely how the restructuring is achieved since both British companies, and companies abroad, will likely have a keen interest in maintaining trade mark protection in the UK, given the size and importance of its market.
For the moment, whilst we know that a referendum will take place, we do not know when this will be, or, of course, the outcome. In the event, however, that the UK opts to leave the EU, there remain wholly unanswered questions as to how this would affect trade marks and other intellectual property rights in the UK which have been the subject of European harmonisation for the past thirty years at least.