Post-Brexit Trade Marks - Key CJEU Cases & Practical Implications

Introduction

Brexit was expected to create a clear dividing line between the UK and EU trade mark systems but in practice, the position remains far from straightforward. For practitioners dealing with EUIPO oppositions and invalidity actions spanning the Brexit transition period, questions over the relevant date, the continuing life of earlier rights and the use of UK evidence can create significant uncertainty.

Three key CJEU cases, Basmati, Ape Tees and the pending Shopify decision provide an essential framework for understanding how these issues are developing. Ape Tees has confirmed that, at least in the context of Article 8(4) rights, the relevant right must continue to exist through to the EUIPO’s final decision, while Shopify keeps the related question of Article 8(5) reputation firmly in focus.

This webinar will turn these complex post-Brexit issues into practical guidance for trade mark practitioners. You will explore how the EUIPO and CJEU are approaching Brexit-era disputes, assess when UK rights and evidence remain relevant and understand the implications for oppositions, invalidity actions and appeals.

By the end of the webinar, you will have a clearer framework for assessing post-Brexit trade mark risk, deciding how UK evidence should be used, framing potential appeals and advising clients with greater confidence where the UK/EU position remains uncertain.

What You Will Learn

The webinar will cover the following:

• The Brexit timeline - the Withdrawal Agreement, transition period and a critical review of Section V of EUIPO Communication No. 2/20
• Why the EUIPO’s treatment of UK rights and evidence has created both practical and doctrinal challenges for practitioners
• What Basmati decided and what it deliberately left unresolved
• Ape Tees and Article 8(4) oppositions - how the decision changed the position by requiring the earlier right to remain relevant until the EUIPO’s final decision and the practical difficulties this creates for UK practitioners
• A critical analysis of Ape Tees - examining the CJEU’s textual, systematic and purposive reasoning and why the decision does not resolve whether UK evidence can establish reputation under Article 8(5) for an EUTM that continues to exist
• The issues highlighted by Ape Tees and the importance of the pending Shopify decision - including the tension between filing-date and final-decision analysis and comparisons with the UK approach
• The potential long-term consequences of Ape Tees - including the additional burden it may place on rights holders and opponents in future proceedings
• Practical strategies for practitioners - covering evidence, appeal strategy, explaining post-Brexit uncertainty to clients