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Halloweenbrexit? Make Your Mark Spring 2019 HALLOWEEN BREXIT? IN THIS ISSUE Trade marks and designs EUROPEAN with a Brexit deal PERSPECTIVES Article 126 of the Withdrawal Agreement • Halloween Brexit? Page 1-2 provides for a “transition” period from when • Should we shoot the UK exits the EU until 31 December the messenger? Pages 3-4 2020. During this period, EU law will continue to apply to the UK. • Monkey business Pages 4-5 UK NEWS Registered EUTMs and RCDs • Snippets Pages 6-25 After the transition period, owners of At the time of writing, the EUTMs and RCDs granted before the end UK COURT DIARY bewildering journey of Brexit of the transition period will “without any • Come fly with me: is ongoing. Several rounds of re-examination, become the holder of a High Court engages rejections and extensions have comparable registered and enforceable “intention to target” occurred since we last wrote about right in the UK” (art.54 of the Withdrawal approach in Britain’s exit from the European Agreement). jurisdictional Union (EU) in the Autumn issue of challenge Pages 26-27 Make Your Mark, culminating in a Pending applications • Horny trade mark special meeting of the European Assuming a deal is struck and the transition dilemma Pages 28-29 Council, at which a longer flexible period is agreed, applicants can (and extension was agreed. • A spoonful of should) continue to file EUTM, international aggressive behaviour As a result, exit day is now defined as (EU) and RCD applications as usual until does not help 11pm on 31 October 2019. However, at least 31 December 2019. Based on pre-action disclosure if both the European Commission and the EUIPO’s speed of registration, the go down Pages 30-31 the UK ratify the Withdrawal Agreement majority of routine applications filed by that before 31 October 2019, then Brexit will date should have been granted before ABOUT OUR FIRM Page 32 take place on the first day of the month the transition period expires and will following the date of ratification, and automatically convert into equivalent UK the extension will be terminated. Also, registrations. The owner of a EUTM or RCD there’s a chance that the Government still pending at the end of the transitional might decide to call the whole thing period (December 2020) will be entitled off, as the UK has a right to revoke its to file a corresponding UK application notification under Article 50 at any time within nine months from the end of the and cancel Brexit altogether. transition period—i.e. to September 2021 (Withdrawal Agreement art.59.1). This new UK application will retain the filing date of the EUTM (and priority date if applicable). Maucher Jenkins encompasses UK, German and European Patent and Trade Mark Attorneys, Attorneys-at-Law and IP Litigators. Maucher Jenkins is the joint trading name of RGC Jenkins & Co in the UK (regulated by IPReg) and Maucher Jenkins Patentanwälte & Rechtsanwälte in Germany. ©2018 Maucher Jenkins® International registrations (IRs) which will come into force at the point of UK, EU and third-country designers will the UK’s exit from the EU. It added that be provided with continued protection The UK Government will arrange a system the new UK right will be provided with for those designs first disclosed in EU27 with WIPO to allow EU designations of IRs “minimal administrative burden”. There is Member States and already protected by to be converted into, or re-registered as, no confirmation that this will not involve an unregistered Community design right at national UKTM registrations, retaining their payment of a fee. the point that the UK exits the EU “with no original filing or priority date. IRs specifically action required by the right holder”. designating the UK will be unaffected by Right holders will be notified that a new the UK leaving the EU. UK right has been granted; any business, Through the new supplementary organisation or individual that does not unregistered design right, designs which Those who have obtained protection for want to receive a new comparable UK are disclosed in the UK after the UK international registrations of trade marks registered trade mark or design will be able exits the EU will be protected in the UK or designs designating the EU before the to opt out. under the current terms of the UCD end of the transition period will continue (which means that protection for surface to enjoy protection for those international Pending EUTMs and RCDs decoration will be available). trade marks and designs after the Applicants will have a period of nine transition period (art.56 of the Withdrawal Representation at the EUIPO months from the date of exit to re-file with Agreement). the UK IPO under the same terms for As an Anglo-German firm with a long- Unregistered design right a UK equivalent right, using the normal standing presence in London and Munich, application process for registered trade Maucher Jenkins is aptly placed to Holders of unregistered Community marks and registered designs in the UK represent our clients before the EUIPO design (UCD) rights that arose before the but retaining the date of the EU application both now and following Brexit, in whatever end of the transition period will become for priority purposes. shape it may take. Our professionals are owners of corresponding rights in the ideally suited to represent our clients’ UK (with the “same level of protection” Applicants with pending EUTM or RCD interests in the UK, Germany and as the corresponding UCD) after the applications will not be notified and after throughout the EU. Our UK, Irish and transition period (art.57 of the Withdrawal exit will need to consider whether they German lawyers are experienced in Agreement). re-file with the UK IPO in order to obtain EUTM and RCD matters, as well as in protection in the UK. Re-filing will incur a contentious, advisory and IP contractual Trade Marks and Designs with standard trade mark filing fee. no Brexit Deal matters, and will retain rights of Unregistered design right representation before the EUIPO after In the event of no deal, there will be no any Brexit. transition period. UCD rights protect a range of design features including two- and three- Our German Patentanwälte regularly act International registrations dimensional aspects such as surface before the EUIPO and will also retain these The UK signed up to the Hague System for decoration and product shape. The UCD rights. the International Registration of Industrial provides three years of protection from the Our UK Chartered Trade Mark Attorneys Designs on 13 June 2018, so applicants date that the design is first made available and Patent Attorneys are among the most for international design registrations can to the public (“disclosed”) within the EU. trusted and knowledgeable in the industry designate the UK. The UCD is entirely separate from the and our clients’ cloned or re-filed EUTM UK’s own unregistered design right, which and RCD rights will come to a safe UK Registered EUTMs and RCDs protects product shape and configuration landing in their hands. Under the proposed For existing registered EUTMs and RCDs, but cannot protect any form of surface transition arrangements, they may also the UK Government has said that it will decoration. The UK unregistered design continue to act directly in respect of any provide a new equivalent trade mark or right will continue to exist for designs first EUIPO matters still pending during any design right registered in the UK, disclosed in the UK. transition period. Page 2 SHOULD WE SHOOT THE MESSENGER? EUROPEAN EUROPEAN PERSPECTIVES Brand owners policing the internet Kicking up a stink In the past, there have been comparable are alive to instances of trade mark cases of possible intellectual property The defendant, Amazon, facilitates sales infringement, including on third-party infringements through online providers, agreements between third party suppliers internet platforms such as Amazon where those agents only acted as a and buyers in such a way that it optionally and eBay. Back in 2016, Coty sought platform between the buyer and the takes care of the stocking and shipping to prevent retailers and distributors infringing third party distributor. The of goods through the service “shipping from selling its luxury brands through question of the platform’s responsibility via Amazon”. The plaintiff, Coty, is a Amazon, as it preferred to control is by no means fully resolved. However, licensed distributor of the EU trade mark sales in high-end bricks-and-mortar one can make out a tendency to DAVIDOFF 0876874. Coty acquired a shops. The luxury brand industry disburden these platforms from control bottle of “Davidoff Hot Water Edt 60 ml” breathed a sigh of relief when the responsibilities. The courts of first (LG via a test purchase, which turned out to Court of Justice of the European München I, Urteil vom 19.01.2016 – 33 O infringe trade mark rights. It requested that Union (CJEU) ruled that the restriction 23145/14) and second (OLG München, Amazon hand over all remaining goods did not breach competition laws, as Urteil vom 22.03.2017 – 29 U 745/16) and inform Coty about the third party long as it did not discriminate against instances in Germany did not follow Coty suppliers. Amazon handed over 30 bottles particular resellers. in its view that Amazon’s responsibility of perfume, but claimed it could no longer for its business model encompasses retrace the source and therefore was not the accountability for third-party sellers’ able to disclose further details. unlicensed goods. The question and its relevance Strictly speaking, it is correct that a The tricky part is that Amazon itself is not violating action by Amazon is hard to party to the sales contract.
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