The ways that businesses can protect their brands will have to change as the UK leaves the EU. Tom Moore, a solicitor in Stephens Scown’s intellectual property and IT team outlines the issues.
Rural businesses are often borne out of a need for diversification to drive revenue. Recent trends have been towards consumer facing offerings, including hospitality, experience and lifestyle products. This has been coupled with an increasingly savvy consumer population and a focus on provenance. As a result, rural brands have never been more valuable; whether you’re a cookery school, bijoux off grid accommodation, craft ale brewery or cheese maker.
The future for EU trade marks
The first post of protection for any brand is trade mark registration. As a current EU member state, UK businesses can seek and are protected by EU wide trade mark registrations (‘EUTM’). EUTMs are incredibly popular – accounting for around half of the trade marks we file each year. This is mainly due to the value for money an EUTM offers. However, since the UK voted to leave the EU questions have been raised over how the EU administered rights will be handled. Stephen Scown’s Chartered Trade Mark Attorney, Sanjay Raphael recently commented on the potential landscape of trade mark law for UK and EU businesses post Brexit:
“The Chartered Institute of Trade Mark Attorneys have recently released a white paper discussing the various options of brand management post Brexit – it is a genuinely unprecedented situation and so we have had to look at historic events such as Tuvalu’s independence from the UK, where right owners were able to purchase ‘child’ registrations within a fixed period post independence. Whether the UK’s Intellectual Property Office (or indeed the EU’s Intellectual Property Office) will entertain this precedent is, at the moment, unknown.”
Protected Designation of Origin
To complicate matters further, trade marks are not the only harmonised legal right that brand owners have to contend with. The much reported Protected Designation of Origin (PDO) and Protected Geographical Indication (PGI) – of Cornish Pasty fame – might be completely lost by Brexit. Other countries, such as France and Italy, offer national schemes of regional and ingredient identification (e.g. Champagne and Chianti). Ideally, a similar system will be invented. But this leads to the question of how those rights are then administered, by whom, and to whom – would the new equivalent of a PGI match the EU wording?
For those businesses that currently benefit from PGI/ PDO, this is a key question. Not only because this is an unprecedented situation, but unlike where devolution from one authority to another might have some similarities (e.g. both the EU and UK have trade mark law and administrative bodies), the situation is further complicated by the UK having no comparable system where rights could be transferred to.
Or does it? UK trade mark law has a number of unique quirks – one of which is a ‘collective’ marks where the mark acts as an identifier that a product or service comes from one of a number of specific businesses. In addition, ‘certification’ marks are badges that guarantee the quality of a product or service, regardless of where it comes from. Whether PDQ and PGI protection will be somehow migrated into the existing UK trade mark protection regime is unconfirmed, but many businesses may see the opportunity to beat the post-Brexit rush and mark their line in the sand now – especially as the UK trade mark system works on a ‘first come, first served’ basis.
Tom Moore is a solicitor in the intellectual property and IT team at Stephens Scown. He can be contacted on 01392 210700 or email firstname.lastname@example.org.
This article first appeared in our rural newslink newsletter. To find out more about our rural team and how they support the rural community visit their page or get in touch on 01392 210700.