Brexit is on everyone’s minds. Article 50 of the Lisbon Treaty is close to being invoked. One of the key issues for businesses that either operate in the EU or plan to do so is how to best protect their intellectual property and especially their trade marks.

Firstly, owners of UK trade marks are not affected. Their rights will continue to apply to the UK only post Brexit.

Secondly, owners of EU trade marks are not affected – for the time being. EU trade marks will continue to give protection across the 28 states of the EU. But, once Brexit happens, and the UK is finally out of the EU, these will only provide protection across the remaining 27 states – and, ironically, not in this country.

The question is, what transition mechanism will be implemented to make this happen? At the moment, there is a conspicuous lack of clarity leaving existing owners of EU trade marks with a stark choice.

Brexit – two choices

Firstly, they can wait-and-see. Then implement the measures as required by the provisions of whatever mechanism is chosen.

But the lower-risk option is to apply for a UK trade mark now. The aim is to secure UK national rights as soon as possible and take away the uncertainty of the wait-and-see plan.

This may add more cost. But, if an opportunity arises to review a company’s activities now, and if the existing EU trade marks are not sufficiently wide to cover all of the current activities, now could be the time to apply for a UK trade mark with a widened specification. Firms will not be able to widen the scope of their trade mark coverage during any transition process.

For companies thinking of opening up new export markets in the EU after Brexit, an EU trade mark is a good solution. But you will need to think about how extensive your trading plans are in the future 27 state EU. If your plan is to trade between the UK and just one other EU country, as soon as the UK is out of the EU your EU trade mark may be open to challenge because the amount of trade being conducted may not be deemed to be sufficient ‘use’ of the trade mark.

This is a very complicated area and professional advice is essential to guide you through this decision-making process.

For more information about Ward Trade Marks, please go to Ward Trade Marks or call Bill Ward on 01284 774841.