What does a no deal scenario mean for the protection of intellectual property in the fashion industry if the UK leaves the EU without agreement – something which is looking increasingly likely following Salzburg?
The UK government released yesterday a proposal that attempts to answer this question and which will introduce new law on:
- EU trade marks
- registered EU designs
- unregistered EU designs
EU trade marks and registered designs
Fashion brands which hold an EU trade mark or registered EU design will have a new UK equivalent right granted that will come into force at the point of the UK’s exit from the EU. This is what was expected.
What is new is that a fashion brand which has an EU trade mark or design application pending but not yet registered at the point of exit will be able to refile, within nine months from the date of exit, under the same terms for a UK equivalent right, retaining the EU application date. This is a welcome development but it is likely that any new UK application will need to be paid for, which could impact on already stretched finances for some brands.
EU unregistered designs
Following a period of lobbying by the fashion industry and other interested parties, the UK will create a new unregistered design right in UK law which mirrors the EU unregistered design. This means that the UK fashion industry will not lose one of its most useful rights which protects clothing designs and crucially includes the ability to protect surface decoration or patterns. The EU unregistered design will live on as a new UK right – deal or no deal.
Fashion brands can breathe a sigh of relief that their designs will still be protected following Brexit. However, given the uncertainty surrounding Brexit and that it can take between four and six months to register an EU trade mark, if a fashion brand wishes to protect its EU rights including the UK following Brexit it should without delay:
- file an EU trade mark
- file an EU design
This will avoid the need to file two trade marks or designs following Brexit to protect rights in the EU and UK.