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  • Five days of Brexit – 4. What about ongoing oppositions?

    As parliament continues 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 four:

     

    What about ongoing oppositions? What about UK proceedings which rely only on EU rights? Would it be sensible to review these now?

     

    The draft Withdrawal Agreement is silent with regard to the manner in which the newly generated equivalent rights may be substituted into ongoing legal proceedings, in place on the unitary rights which will no longer have force in the UK. The Government White Papers state the following, which is barely more useful.

    …provision will be made regarding the status of legal disputes involving EU trade marks or registered Community designs which are ongoing before the UK courts and more information will be provided on this before the point at which the UK exits the EU.

    Certainly, where possible, basing oppositions and proceedings on UK rights (or simply including a UK right in order to ensure the applicability of at least one right) may be advantageous from an administrative point of view. Certainly, it would be sensible to review one’s enforcement matters to identify areas where one may be caught short in the event that the transition from unitary rights to the equivalent rights is not a smooth one.

    That said, what appears likely to me at least, is that the equivalent rights which are generated will be generated in such a way that they may be substituted for the previous unitary right in ongoing proceedings.