Proving Use of an EU Trademark in Brexit Britain – Trademark

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The General Court issues a decision which has implications for the requirement to prove use of an EU trade mark

The case concerned an application for revocation of an EU trade mark. The revocation applicant argued that the EU trade mark had not been put to genuine use in the EU during the relevant period. The EU trade mark proprietor submitted evidence of use in the UK when the UK was still a member of the EU.

The General Court said that the EU-UK Withdrawal Agreement did not regulate whether use of a mark in the UK, before the end of the transition period, would be considered as “use in the EU” or not once the UK left the EU. In the absence of an express provision in the Withdrawal Agreement, the General Court held that the United Kingdom was a member of the EU throughout the relevant period to demonstrate use of the European Union trade mark. As such, the General Court held that the EU trade mark had been “used in the EU” within the meaning of the rule of the EU trade mark regulation (2017/1001).

In the present case, the relevant period to demonstrate use was during the period when the UK was still a member of the UK. In the future, the relevant period could be partially or totally after the end of the transition period. Use of a trade mark in the UK after the end of the transition period would then no longer be relevant. Customers may want to consider this implication; review their use of its EU marks and determine whether their use of its EU marks meets the requirements of EU law.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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