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  • Five days of Brexit – 1. What if the UK government are slow to implement?

    As the UK parliament prepares to debate Theresa May’s plan for exiting the EU, we seem to be no closer to knowing whether the UK will be leaving the EU with her deal, another deal, no deal, or perhaps even not leaving at all (or at least for now). The Draft Withdrawal Agreement and the government’s position papers have given some indications as to what to expect in at least some of these potential scenarios. But there are still plenty of questions to be asked about what it might all mean for your brand and your EUTMs. This week, we consider:

     

    1. What if the UK government are slow in implementation? Would you want to rely on an EU registration to enforce short term?
    2. What about pending EU applications? Might it be sensible to look at those and refile where necessary?
    3. What about non use? Should I be analysing my portfolio?
    4. What about ongoing oppositions? What about UK proceedings which rely only on EU rights? Would it be sensible to review these now?
    5. What about references to ‘the EU’ in my agreements?

     

    Today we consider the first of these:

     

    What if the UK government are slow in implementation? Would you want to rely on an EU registration to enforce short term?

     

    Whether the UK government is able to reach a resolution with the EU, or the UK leaves with a deal in place, there will be a real administrative strain on many administrative bodies within the UK (and the EU for that matter). One potential upshot of this burden is a potential delay in the generation of equivalent rights for those who depend on EU based unitary rights at present (such as EUTMs and RCDs).

    We now know that the UK Government intends to afford unitary right holders an equivalent right, in the event that the draft Withdrawal Agreement is finalised, or the UK leaves without a deal in place. The extent to which one might wish to rely on these rights from day one is up for debate. As an example, the holder of an EUTM may become the holder of an equivalent UK, with the same registration number, or the same registration number with a prefix, or even a new right altogether. If one is licensing, enforcing, litigating and so on, based on the EUTM as it presently applies to the UK, the delay in generation or identity of the equivalent right may not be trivial.

    If the possibility of not having a clearly identifiable right on Saturday 30 March 2019, on which to base the enforcement activities detailed above, is a real concern, then refiling in the UK is a reasonable way to circumvent this concern. Whilst we maintain this is not necessary for all clients, if your enforcement/exploitation of the right in the UK is likely to have time-critical issues next spring, then this is certainly worth considering.