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Court of Justice rules on the effect of Brexit on trade marks

07/12/18

The General Court and Court of Justice hear a number of trade mark appeals relating to decisions of the EU Intellectual Property Office. In Case C-340/17P Alcohol Countermeasure Systems v EU IPO, the appellant raised what it called a ‘public order’ ground of appeal from a decision of the General Court relating to the Brexit referendum.

The Appellant argued that a UK earlier trade mark right could no longer be relied upon to invalidate an EU trade mark as a result of the Article 50 notification given by the United Kingdom. It was argued that permitting such an invalidation would create unnecessary and disproportionate obstacles to unitary trade mark protection given that the United Kingdom will no longer be part of the EU unitary trade mark system. It was argued that the General Court violated the territoriality principle recognized by the 1883 Paris Convention and Article 17 of the Charter of Fundamental Rights of the European Union.

The United Kingdom intervened in the appeal and argued that this Brexit related ground of appeal was both inadmissible and unfounded.

The Court (Judges Jürimäe, Lycourgos, and Vajda) and AG Sharpston declined to rule on whether or not this ground of appeal was inadmissible, but went on to dismiss it on the merits. They held that there was no requirement for the Court to stay the proceedings before it as a result of the vote to leave the EU or the Article 50 notification, and that there was no retroactive effect of those measures.

The Court further held that a mere notification given by a Member State under Article 50 does not have the effect of suspending the application of EU law until the time of its actual withdrawl from the European Union. It followed that the ground of appeal was rejected.

The judgment is here.

Nicholas Saunders QC appeared for the United Kingdom instructed by the Department for Exiting the EU.