July 18, 2016

Brexit, Brouhaha, and… Beer?

by Guest Blogger


You are probably sick of hearing the word BREXIT by now. If you don't yet know what it is, Brexit refers to Britain's recent vote to exit the European Union. Since numerous international agreements must now be reversed, there is a lot of uncertainty about how the United Kingdom will unravel its membership in the EU.

Brexit has great significance to trademark owners who have registered their trademarks in the European Union. One of the benefits of the European Union was the ability to register intellectual property, including trademarks, in the entire EU through a single registration filing that avoided having to separately register a mark in each individual country. The Brexit vote leaves many open questions as to whether trademarks that are registered in the EU will continue to be treated as registered in the UK or whether that protection will be lost in the United Kingdom. The international treaty that establishes the EU trademark registration system contains no provisions that address what should happen if a country were to leave the EU.

It will probably take several years for these questions to be answered. New legislation would be required by the UK Parliament and perhaps the EU Parliament as well to ensure that EU trademark registrations continue to be protected in the UK after Brexit takes effect. Given the possibility that trademark owners will lose registration rights, many commentators believe that legislation will be enacted to continue protecting EU trademark registrations in the UK after Brexit, but there are differing theories as to the mechanics and whether additional conversion or re-application filings would be required in the UK. For now, trademark owners have to decide whether to wait and see or whether to take a more proactive (and more expensive) approach by filing separate trademark registrations in the UK as a back-up plan. Unlike the United States, the UK (and most other countries) grants trademark protection to the first person to register a mark regardless of who used the mark first. Timing is important.

With the impact if Brexit looming large, several trademark applications have been filed to seek registration of the mark BREXIT for various goods and services. It seems this is the new "it" word, but we will see how long that lasts before the novelty wears off. For now, Bost Obeer Corporation, which owns the SAMUEL ADAMS® beer brand, has applied to register BREXIT for hard cider. Another application has been filed to use BREXIT for vitamins and supplements. And, yet a third application has, of course, been filed to put BREXIT on t-shirts. I was struck by the application for vitamins and supplements because the description speaks to "detoxification" which made me think of laxatives. I must say, it would be pretty clever to name a laxative BREXIT.

If you want a Brit's view of Brexit, check out John Oliver's commentary.