Brexit changed the way businesses protect their trademarks in the United Kingdom and the European Union. Before the UK left the EU, a single European Union Trade Mark (EUTM) registration covered all member states, including the UK. Companies could secure their trademarks across Europe with a single application, simplifying brand protection. However, after Brexit, this system no longer applies to the UK. Businesses now need separate trademark registrations for the UK and the EU.
This change has created challenges for businesses that operate in both regions. Many companies now face extra costs, new legal processes, and potential enforcement issues. Without proper planning, businesses risk losing their trademark rights in one or both regions. Understanding how Brexit has impacted trademark protection helps businesses navigate these changes and ensure their brands remain secure in both markets.
The Split Between UK and EU Trademark Protection
Before Brexit, businesses could register a single European Union Trade Mark (EUTM) through the EU Intellectual Property Office (EUIPO), and it would automatically cover all member states, including the UK. This streamlined approach allowed businesses to protect their brands across multiple markets with a single application.
However, when the UK officially left the EU, it also exited the EUTM system. As a result, an EUTM now only covers the remaining 27 EU member states and no longer provides protection in the UK. This means that businesses operating in both regions must now secure two separate trademark registrations: one with the EUIPO for EU-wide protection and another with the UK Intellectual Property Office (UKIPO) for protection in the UK.
To ensure continued protection, the UK government automatically created equivalent UK trademarks for all existing EUTMs on January 1, 2021. Businesses that already held an EUTM before Brexit did not need to take immediate action, as they were granted a comparable UK trademark with the same priority date. However, these newly created UK trademarks must now be maintained and renewed separately from their corresponding EU registrations.
For businesses that filed EUTM applications but had not received approval before Brexit, their applications no longer extended to the UK. They had a nine-month window to apply for an equivalent UK trademark while retaining the original filing date. If they missed this deadline, they now need to file a fresh UK trademark application, which does not benefit from the earlier EUTM priority date.
Registering a Trademark in the UK and the EU After Brexit
Businesses now need to approach trademark registration differently depending on their target markets. If they plan to operate across both the UK and the EU, they must apply for two separate trademarks—one with the EUIPO and one with the UKIPO. This doubles the application process, as businesses must now meet the specific legal requirements of each jurisdiction.
Applying for a trademark in the EU remains similar to how it was before Brexit. Businesses file an application with the EUIPO, and if approved, the trademark provides protection across all 27 EU member states. However, this no longer extends to the UK, which requires businesses to submit a separate application through the UKIPO.
The UK trademark application process follows a similar structure to the EUIPO, but with some key differences. The UKIPO conducts a more detailed examination of applications, including potential conflicts with existing marks. The UK also has different rules regarding trademark revocation due to non-use. Under UK law, a trademark can be challenged and revoked after five years of non-use, just like in the EU. However, because the UK is now a separate jurisdiction, businesses must prove genuine use within the UK, not just anywhere in the EU.
Challenges in Trademark Enforcement After Brexit
With separate trademark systems now in place, businesses must enforce their trademarks independently in the UK and the EU. Previously, a single EUTM allowed businesses to take action against infringers anywhere within the European Union, including the UK. Now, enforcement requires separate legal proceedings in each jurisdiction, which can increase costs and complicate brand protection efforts.
If a business identifies trademark infringement in the UK, it must rely on the UKIPO and UK courts to take action. The same applies to the EU, where enforcement must be handled through the EUIPO or the courts of the relevant member state where infringement occurs. This division means businesses need to monitor both markets closely, as stopping an infringer in one jurisdiction does not automatically halt their activities in the other.
Border enforcement has also changed. Before Brexit, a trademark owner could file a single request for customs enforcement under the EU’s Customs Enforcement Regulation, which applied across all EU member states, including the UK. Now, businesses must file separate customs enforcement requests—one with UK authorities and another with the EU—to prevent counterfeit goods from entering either market. Failing to do so could allow infringing products to slip through enforcement gaps.
Another challenge arises when businesses need to rely on reputation-based trademark claims. In trademark disputes, businesses often argue that their mark has gained distinctiveness through use, which strengthens their case against infringers. Under the previous system, proof of reputation anywhere in the EU could support an EUTM claim, even if the brand was not well-known in every member state. Now, for UK trademarks, businesses must prove reputation specifically within the UK. Similarly, for an EUTM, reputation must be demonstrated within the EU, excluding any brand recognition built in the UK. This division means businesses may struggle to establish trademark reputation-based claims if their branding efforts were spread across both markets before Brexit.
Renewals, Maintenance, and Costs of Trademark Protection
Managing trademarks post-Brexit requires businesses to keep track of renewal dates and maintenance requirements separately for UK and EU trademarks. Previously, renewing an EUTM automatically extended protection to the UK, but this is no longer the case. Businesses with trademarks in both jurisdictions now have to file and pay for two separate renewals.
This also means that businesses need to budget for increased costs. Each jurisdiction has its own official fees, and legal costs may rise if businesses require local representation for trademark disputes or enforcement in both regions. Businesses that fail to renew their trademarks in one jurisdiction risk losing protection in that region, which could open the door for competitors to claim similar marks.
The Impact of Brexit on Trademark Licensing and Assignments
Trademark licensing and assignments have become more complex due to Brexit, as businesses now need to handle UK and EU trademark rights separately. Before Brexit, a licensing agreement covering an EUTM was automatically valid in all EU member states, including the UK. Now, companies must ensure that their licensing agreements explicitly include UK trademark rights if they want to cover both markets. Failing to update agreements could leave a business unprotected in one of the two jurisdictions.
For businesses that have assigned trademarks, the same issue arises. If a company previously assigned an EUTM, the new owner may only hold rights for the EU, while the UK equivalent trademark remains under the original owner’s name unless separately transferred. This can cause legal confusion, particularly in cases where businesses assumed that an EUTM assignment before Brexit would continue to apply to the UK. Companies must review past trademark assignments to ensure that ownership records are correctly updated in both the UK and EU trademark systems.
Another challenge in licensing is territorial restrictions. Some licensing agreements were drafted assuming that an EUTM covered the UK, meaning that licensees operating in the UK might now be using a trademark without proper authorization. To prevent legal issues, businesses should conduct a thorough audit of existing licensing agreements, ensuring that they either extend to the UK through a separate UK trademark or explicitly allow continued use under revised terms.
The Effect on Pending Opposition and Cancellation Proceedings
Another significant issue caused by Brexit is the impact on trademark oppositions and cancellation proceedings that were ongoing when the UK left the EU. Before Brexit, an opposition or cancellation action against an EUTM could be based on prior UK trademark rights. However, as of January 1, 2021, UK trademarks can no longer be used as a basis for opposing an EUTM.
This change means that businesses that previously relied on UK trademark rights to block an infringing EUTM must now file separate oppositions in the UK and the EU. Any opposition or cancellation proceedings that were pending before Brexit had to be reviewed under separate rules, and in many cases, businesses were forced to file new proceedings in the UK.
For businesses that had pending EUTM applications that were opposed using UK rights, Brexit may have altered the outcome of the case. If the opposition was based solely on UK trademark rights, the opposition may have lost legal standing in the EU. Companies that were involved in such disputes had to re-evaluate their strategies, potentially re-filing in the UK to ensure continued protection.
How Brexit Affects Trademark Strategy for Businesses Expanding into the UK and EU
For businesses planning to expand into the UK and the EU, Brexit has introduced new strategic considerations. Previously, filing an EUTM provided seamless access to both markets, making trademark protection easier and more cost-effective. Now, businesses must develop a dual-registration strategy to ensure full coverage in both regions.
One important factor to consider is which market a business plans to enter first. If a company is expanding into both the UK and the EU, it should apply for trademarks in both regions at the same time to avoid gaps in protection. However, if a business intends to launch in one market before the other, it may prioritize filing in that jurisdiction first. The key is to align trademark filings with business expansion timelines, ensuring that trademarks are secured before a product or service enters the market.
Another consideration is how businesses handle branding and marketing efforts. Since UK and EU trademarks are now separate, businesses should be careful about how they present their brand in each region. In some cases, companies may want to slightly modify their trademarks to better suit local markets while maintaining overall brand consistency. If a brand name or logo needs to be adapted for a particular country, separate UK and EU registrations can accommodate these adjustments.
Brexit also impacted the Madrid Protocol system, as UK trademark protection is no longer automatically included in international trademark applications filed through the EUIPO, requiring businesses to designate the UK separately when seeking international protection.
Businesses must also stay ahead of potential trademark conflicts. Since trademarks are now handled independently in the UK and the EU, different companies could potentially register similar trademarks in each region. This is particularly problematic for businesses that delay filing in one of the jurisdictions. If a competitor secures rights to a similar mark in the UK while a business owns the EU trademark—or vice versa—legal disputes may arise, making enforcement more difficult.
The Role of Trademark Monitoring in the Post-Brexit Era
Trademark monitoring has become more important than ever since Brexit, as businesses must now track potential infringements separately in the UK and the EU. Previously, a business with an EUTM only needed to monitor one system to detect infringers across all member states. Now, businesses need to monitor both the UKIPO and EUIPO databases to ensure that no one is trying to register a confusingly similar trademark in either region.
Monitoring also extends beyond official trademark filings. Businesses should actively watch for potential infringement in online marketplaces, domain name registrations, and social media platforms. Many infringers attempt to exploit brand name differences between the UK and the EU, taking advantage of legal gaps created by Brexit. Companies should set up trademark watch services that notify them of new applications in both jurisdictions, allowing them to file oppositions if necessary.
For businesses facing ongoing infringement issues, enforcement actions may require separate legal strategies in each jurisdiction. Since the UK and the EU now operate independently, an enforcement victory in one region does not guarantee the same outcome in the other. This means businesses must carefully assess which legal actions are most effective for each market, balancing cost, time, and risk.
Practical Steps Businesses Should Take to Adapt to Post-Brexit Trademark Rules
Businesses that operate in both the UK and the EU should take proactive steps to protect their trademarks under the new system. One of the most important actions is conducting a trademark audit to ensure that all registrations cover both regions. This includes reviewing existing trademark portfolios to check if UK trademarks were properly cloned from EUTMs after Brexit and ensuring that renewal dates are correctly tracked in each jurisdiction.
Another key step is updating trademark licensing agreements to reflect the new legal structure. Any agreements that reference an EUTM must now specify whether they include the UK trademark or whether a separate UK registration is needed. This is particularly important for businesses with franchise agreements, distributors, or manufacturing partnerships that involve branding rights in multiple jurisdictions.
Companies should also consider filing new applications in both the UK and the EU if they have not already done so. Many businesses assumed their EUTM was sufficient before Brexit, only to later realize they needed a UK filing as well. Those that missed the nine-month grace period for retaining their priority date must now start fresh with a UK trademark application.
Additionally, businesses should reassess their enforcement strategy in light of the changes. Since enforcement must now be handled separately, companies should work with legal experts in both jurisdictions to develop a plan for addressing potential conflicts. This may involve filing separate oppositions, sending cease-and-desist letters, or working with customs officials to block counterfeit goods at UK and EU borders.
Finally, businesses should stay informed about evolving trademark laws in both regions. Brexit is still relatively recent, and legal interpretations of post-Brexit trademark rules continue to develop. Monitoring legal updates, consulting with trademark attorneys, and staying ahead of regulatory changes will help businesses navigate this new trademark landscape effectively.
Securing Long-Term Trademark Protection in a Post-Brexit Market
Brexit has permanently changed the way businesses manage trademark protection in the UK and the EU. What was once a single, streamlined process under the European Union Trade Mark system has now become two separate legal frameworks, requiring businesses to take a more structured and proactive approach to securing their brand rights. This shift has created both challenges and opportunities, making it essential for companies to understand the implications and adjust their trademark strategies accordingly.
The most immediate impact of Brexit is the need for businesses to file and maintain separate trademark registrations in both the UK and the EU. Companies that previously relied on a single EUTM must now ensure they have equivalent protection in the UK to avoid gaps in coverage. This means tracking renewals, updating licensing agreements, and monitoring trademark use in both jurisdictions. The costs and administrative burden have increased, but businesses that plan ahead can prevent legal disputes and maintain strong brand protection across both markets.
Trademark enforcement has also become more complex. Businesses must now monitor and take legal action in two different jurisdictions, which can require separate court proceedings and enforcement strategies. Since UK and EU courts no longer recognize each other’s trademark rulings, companies must be prepared to handle infringement cases independently in each region. This makes it even more critical to invest in trademark monitoring services that can detect unauthorized use of a brand in both the UK and the EU.
For businesses expanding into new markets, Brexit has created an opportunity to reassess trademark portfolios and make strategic adjustments. Companies should consider whether their branding and trademarks are optimized for both UK and EU markets, especially if cultural or linguistic differences require localized adaptations. Additionally, businesses should review potential conflicts, as trademarks that were once unified under the EUTM system may now be claimed by different entities in the UK and the EU, leading to disputes over similar or overlapping marks.
The long-term impact of Brexit on trademark protection is still evolving. As legal interpretations and enforcement practices continue to develop, businesses must stay informed about regulatory changes and updates from both the UK Intellectual Property Office and the EU Intellectual Property Office. Working closely with trademark professionals in both jurisdictions will help businesses navigate the new trademark landscape effectively.
Businesses that adapt early and take a proactive approach to trademark protection will be in the best position to maintain their brand’s value and integrity. Ensuring full compliance with both UK and EU trademark laws, monitoring for potential infringements, and securing proper legal representation in both markets will help companies protect their intellectual property for years to come. In this new legal environment, brands that take trademark protection seriously will have a distinct advantage over those that fail to adjust to the changes brought by Brexit.
