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UK rights can still be enforced in EU, in spite of the triggering of Brexit


You may remember 29 March 2017 – the day on which the UK formally “triggered” Brexit.

It was also the day on which the EU General Court confirmed a decision of the EUIPO Board of Appeal to cancel an EUTM registration of ALCOLOCK.

The EU registration was owned by Alcohol Countermeasure Systems (International) Inc., a Canadian company. The UK company Lion Laboratories Ltd had brought invalidity proceedings against the EU registration, based on their own prior UK registration for the identical mark ALCOLOCK. The two registrations covered some identical Class 9 goods (for testing breath alcohol) and the later-filed EU registration also covered closely related goods and services.

Lion were required to show proof of use of their UK mark. In granting the declaration of invalidity, the EUIPO Cancellation Division took the view that the earlier UK mark had been put to genuine use, that the goods and services at issue were identical or similar and that the marks were identical.

Alcohol Countermeasure Systems appealed this decision, but the EUIPO Board of Appeal dismissed their appeal.

The Canadian company filed a further appeal, again without success. However, the date on which the General Court issued the decision rejecting that appeal suggested an intriguing further line of argument to the Canadian company.

Before the CJEU, Alcohol Countermeasure Systems argued that the triggering of Article 50 meant that UK trade mark rights could no longer serve as the basis for cancelling rights in the EU. It further argued that the General Court should have stayed the appeal proceedings until the UK had actually withdrawn from the EU.

Sadly for the Canadian company, the CJEU rejected this argument, pointing out that the General Court must assess the legality of the decisions of the Board of Appeal of the EUIPO on the date of each decision. The General Court cannot take into account any factors subsequent to this date. The CJEU commented that it would be contrary to law for the General Court to be obliged to suspend proceedings until the UK had actually withdrawn from the EU. It further commented that in any case it was purely hypothetical at this stage to argue that the withdrawal of the UK from the EU would retroactively affect the outcome of invalidity proceedings based on an earlier UK mark.

The CJEU noted that mere notification by a Member State of its intention to withdraw from the Union in accordance with Article 50 does not have the effect of suspending EU laws in that Member State. Rights conferred under EU law remain in full force in that Member State until its actual withdrawal from the Union.

The cancellation of the EUTM registration of ALCOLOCK is therefore final. As for the finality of Brexit – well, who knows?

(EUCJ, 29 November 2018, C-340/17P, EU:C:2018:965, Alcohol Countermeasure Systems (International) / EUIPO – UK )

This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.

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