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  • Five days of Brexit – 2. What about pending EU applications?

    As parliament gears up to debate Theresa May’s plan for exiting the EU, we’re commenting all this week on five topics that concern brands and Brexit:

     

    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 is question two:

     

    What about pending EU applications? Might it be sensible to look at those and refile where necessary?

     

    Subject to the possible administrative delay discussed in Q.1 yesterday, we do not recommend refiling UK applications for pending EUTM applications.

    In the event of a no-deal, the Government has stated that owners of pending applications for EUTMs or RCDs (as at 29 March 2019) will be able to refile for an equivalent right in the UK within an extended 9-month priority period, beginning upon the exit date. Whilst the White Papers are silent on the topic, we would anticipate that any refilings would be subject to the usual filing fees.

    If the Withdrawal Agreement is accepted and codified, owners of pending applications for EUTMs or RCDs at the end of the transition period (31 December 2020) will have a 9 month priority period in which to file a UK with the EUTM/RCD’s filing date, regardless of the filing date of the unitary right.

    As such, and once more subject to the administrative delay discussed above, the sheer fact that an RCD/ EUTM trade mark application will likely be pending on 29 March 2018 is not enough of a reason, in and of itself, for us to recommend refiling.