6 months to go - ensure your trade marks survive the Brexit five-year transition and you capitalise on opportunities to strengthen the exclusivity of your brand

TL;DR

• Brexit transition ends 1 January 2026: Cross-territorial reliance on trade mark use between the UK and EU will no longer be valid.
• Use it or lose it: Trade marks not genuinely used in their respective territories since Brexit may become vulnerable to cancellation.
• Review your portfolio: Conduct a gap analysis to identify marks at risk and ensure territorial use is documented.
• Act now: Begin using marks in both the UK and EU if not already in use and consider new filings to strengthen protection.
• Reassess enforcement strategies: Adapt to the new legal landscape and take opportunities to challenge third-party marks to increase your brand exclusivity
• Revisit previous obstacles to use or registration of your trade marks: given the new trade mark landscape, previously registered marks may no longer pose infringement risks so it may now be possible to explore wider use or registration of existing trade marks in the EU or UK. 
• Opportunity window: The shift may reduce barriers for new marks where older ones lack post-Brexit use.

Critical preparations required as transitional provisions end

As we approach the five-year anniversary of Brexit on 1 January 2026, trade mark owners face a significant shift in how they can enforce their rights across the UK and EU. With just 5 months remaining, now is the time for brand owners to take decisive action to protect their trade mark portfolios.

The end of cross-territorial reliance

When the UK departed the EU on 1 January 2021, both jurisdictions implemented crucial transitional provisions to prevent immediate prejudice to rights holders. The UK Intellectual Property Office created approximately 1.5 million "cloned" UK trade mark registrations, known as "comparable rights," derived from EU trade mark registrations that were valid before Brexit. This ensured EU rights holders maintained protection in the UK following the separation.

Perhaps more significantly, both territories established reciprocal arrangements allowing trade mark owners to rely on use in either jurisdiction when proving use of their marks. Where proof of use was required for EU trade marks (EUTMs) or UK "comparable rights" – such as in opposition, infringement, or cancellation proceedings – owners could demonstrate use in either the UK or EU for any part of the five-year period preceding 1 January 2021.

This transitional framework provided breathing space for trade mark owners who had previously used their marks in only one territory to prepare for the new reality of separate enforcement regimes.

The diminishing relevance of pre-2021 use

However, the significance of this pre-2021 period has steadily diminished over the past four and a half years. By 1 January 2026, use of an EUTM in the UK, or use of a "comparable right" in the EU, will no longer have any relevance in supporting enforcement rights in the respective territories.

This shift creates substantial vulnerability for many registered trade marks. A significant number of EUTMs and UK comparable rights may become challengeable and unenforceable if there has been no genuine use of the marks in their respective territories since Brexit.

Strategic requirements for trade mark owners

Portfolio assessment and gap analysis

The first priority for all trade mark owners with interests spanning the UK and EU is conducting a comprehensive portfolio review. This assessment should determine whether EU marks and UK cloned marks are genuinely in use within their respective territories. Owners must identify gaps in protection and usage patterns that could expose their rights to cancellation proceedings.

Ensuring active use

Where possible, trade mark owners should take immediate steps to bring their marks into use in both the EU and UK. This is particularly critical for owners of EUTMs who have relied solely on UK use, and holders of UK comparable rights who have only used their marks in the EU. The clock is ticking, and establishing genuine commercial use takes time to implement and document properly.

Strategic registration expansion

Trade mark owners should consider filing new applications for registration in territories where their marks are not yet registered or not in use for goods or services of current or future interest. This proactive approach can fill protection gaps while there is still time to establish a robust enforcement position.

Competitive landscape analysis

The changing enforcement landscape presents both risks and opportunities. Established brand owners should review the competitive environment to identify earlier similar registered trade marks that may be vulnerable to cancellation for non-use. This analysis could reveal opportunities to increase brand exclusivity by challenging unused marks.

Conversely, when selecting new trade marks, the risks posed by earlier registrations may be significantly lower from 1 January 2026 if those earlier marks have only been used in the opposite territory.

Enforcement strategy recalibration

Trade mark owners must review and adjust their enforcement strategies to reflect the relative strength of their use positions in the UK versus the EU. This assessment should consider parallel rights such as copyright and registered designs that may provide alternative or supplementary protection.

For those currently engaged in opposition, invalidity, or infringement proceedings, there may be opportunities to leverage the changing landscape. Some proceedings defended on the basis of earlier rights may become more vulnerable if those rights become susceptible to non-use cancellation from 1 January 2026.

Revisit previous obstacles to use and registration of your trade marks 

The new use requirements landscape means that earlier third party trade marks previously registered in the UK or EU may no longer constitute infringement risks. As such Trade mark owners should revisit whether they might wish to expand registration and use of their existing trade marks to the UK or EU should previous infringement risks now be reduced. 

The window for opportunity 

While the approaching deadline creates urgency, it also presents opportunities for strategic brand owners. Third parties looking to use marks similar to earlier registered trade marks may find greater freedom to operate if those earlier marks lack the necessary territorial use. The competitive landscape is shifting, and prepared brand owners can capitalise on these changes.

Conclusion

The five-year anniversary of Brexit represents more than a symbolic milestone – it marks a fundamental shift in the trade mark protection and enforcement landscape across the UK and EU. With six months remaining until 1 January 2026, trade mark owners have a narrow but crucial window to secure their positions.

The transitional provisions that have provided flexibility since Brexit will end, and the separate enforcement regimes will operate independently. Those who act decisively now to assess their portfolios, establish territorial use, and adjust their strategies will be best positioned to navigate this new landscape successfully.

The time to act is now. Trade mark owners who delay risk finding their valuable rights challengeable and potentially unenforceable when they need them most or risk missing a golden opportunity to boost the exclusivity of their brands. 

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