Preparing for the end of the Brexit trade mark transition period

As we approach the end of 2025, the Brexit transitional period for trade mark use requirements is drawing to a close. This has significant implications for both UK and EU trade mark owners, particularly regarding the risk of revocation for non-use.

EU and UK trade mark registrations

Prior to Brexit, an EU trade mark (EUTM) registration provided protection in all EU member states, which at the time included the UK. Use of the trade mark in any one EU member state was usually sufficient to maintain validity of the trade mark across the EU. However, as a result of Brexit, EUTMs ceased to cover the UK, meaning UK protection for trade mark registrations is now distinct.

Both the EU and UK trade mark registration systems operate on a ‘use it or lose it’ principle. Where a trade mark has not been put to genuine use for any continuous five-year period in the relevant jurisdiction, the registration will be vulnerable to revocation for non-use on the application of a third party. It may also be vulnerable to partial revocation, if used for some but not all of the goods/services which are covered by the registration.

Transition period nears its end

To ease the transition, the UK government automatically created comparable UK trade marks (UKTM) from all EUTMs in existence on 31 December 2020. A comparable UKTM was given the same priority, filing and registration dates as the parent EUTM.

A five-year grace period was introduced, to allow owners of existing EUTMs and the resultant comparable UKTMs to put their marks into use in the relevant jurisdiction. During this period, use prior to 31 December 2020 in either the EU or UK would support use of both existing EUTMs and comparable UKTMs.

However, this transition period expires on 31 December 2025. Upon expiry of the grace period, the ‘use it or lose it’ principle will be fully bifurcated between the UK and EU systems.

Marks at risk are

• EUTMs that were registered on or before 31 December 2020 but that have not been put to genuine use in the EU after that date; and
• Comparable UKTMs that have not been put to genuine use in the UK after 31 December 2020.

UK-based owners of EUTMs

UK-based businesses holding EUTMs should urgently assess whether their marks have been genuinely used within the EU since 31 December 2020.

Post-Brexit, use in the UK will no longer count towards maintaining EUTMs. If an EUTM has not been used in the EU for a continuous period of five years from 1 January 2021 onwards, it may be at risk of revocation for non-use.

Non-UK-based owners of comparable UKTMs

Conversely, non-UK-based businesses who inherited comparable UKTMs following Brexit must assess whether those marks have been used in the UK since 31 December 2020. Upon expiry of the grace period, owners will no longer be able to rely on use in the EU prior to 31 December 2020 to support these rights.

From 1 January 2026, only UK use will count. If a comparable UKTM has not been used in the UK for a continuous period of five years from 1 January 2021 onwards, it may be at risk of revocation for non-use.

What should rights holders do now?

With the grace period ending imminently, proactive steps now can help preserve valuable intellectual property rights.

• Review your UK and EU trade mark portfolios: Identify marks at risk due to lack of use in the relevant jurisdiction.
• Collect evidence: Where there has been use of the trade mark in the relevant jurisdiction in the last five years, but this isn’t entirely clear from an initial search, capture documentary evidence of the place, time, extent and nature of the use.
• Take action: Where there has not been use of the trade mark in the relevant jurisdiction in the last five years, consider initiating use in the relevant jurisdiction (either directly or through others) or refiling for the mark, where appropriate and documenting the steps taken to commence or resume use.
• Monitor disputes: Check whether marks relied upon by you, or your opponents are at risk, and adjust your strategy accordingly. For example, consider the impact on the merits of the dispute, whether settlement may be a preferable option, and whether it may be an option to wait until 2026 and then seek to revoke registrations on the basis of non-use.

How we can help

If you would like advice on how your trade marks may be impacted by the end of the transition period, on the possible impact on ongoing disputes, or on proactive steps to take ahead of 31 December 2025, please reach out to our expert IP team.