Over two years after the UK voted to leave the EU, there is an increasingly likely possibility that the UK will leave the EU in March 2019 without a deal agreed (although negotiations continue).  As a result, the technical guidance notes published on 24 September 2018 give businesses, brand owners and designers much needed insight into how such a scenario will look.

Overall, it appears that the UK Government is seeking to allay concerns that parties might lose rights in a No Deal Brexit including by stating that:

1. Registered Community Designs and trade marks under EU law (as at 29 March 2019) will continue to remain in force in the United Kingdom (as a result of the government providing equivalent rights registered in the UK at minimal administrative burden), and
2. There will be a nine (9) month window post Brexit in which owners of pending Community Designs and trade marks under EU law (as at 29 March 2019) can file UK applications whilst maintaining priority from and filing dates from EU applications. However, this would be subject to the usual costs and applications process for filing a UK application.

Although this position provides some comfort, there is a clear indication that unless a EU trade mark or Community Design will be registered as at Brexit there could be significant work (and costs) required to achieve protection in the UK.  As a result, you may be better off filing a separate UK trade mark or design application now instead of seeking to rely on EU applications and post Brexit priority.

However, there are still a large number of ambiguities (such as the processes involved with maintaining protection of trade mark and design rights filed under the Madrid and Hague Protocols).  Furthermore, the Brexit negotiations are ongoing and the UK Government’s position is subject to change.  As a result, this is still a space that should be monitored closely and up to date legal advice sought as matters arise.

Simon Casinader contributed to this piece.