Thursday, 30 August 2018

Exhaustion of trade mark rights after B****t

If and when the UK crashes out of the EU (and whatever agreement is made to soften the blow, it will be a crash, certainly as far as trade marks are concerned) the Trade Marks Act 1992 will not be unchanged. The European Union (Withdrawal) Act 2018 sees to it that the government will be able to change it to take account of the new circumstances - using what have come to be referred to as Henry VIII powers, after that paragon of democracy and due process. One aspect of huge volumes of legislation that will need attention is that the statute book is peppered with references to the European Union, which when they were written included the UK. So, as in the case of public lending right about which I wrote the other day, it might be necessary to change it to "UK and EU". More often, I suppose, it will be changed from "EU" to "UK" - after all, that's what the Will of the People asked for (American readers please note, that statement is heavy with irony).

Section 12 says that the trade mark owner's rights are exhausted when the goods have been placed on the market in the European Economic Area by the trade mark owner or with their consent. Within a single market that's an important exception to the general idea of trade mark protection (or any other form of IP, come to that). So from E-day, or perhaps from the end of the transition period, section 12 should refer to placing the goods on the market in the UK.

Or must it? It's not many years ago - OK, it is quite a few years ago, but it's within living memory - that the UK government thought it would be a nice idea to replace the EU-exhaustion rule with an International-exhaustion one - so if the trade mark owner had placed the goods on the market anywhere in the world they would be unable to resist parallel imports into the EU. The government's idea seemed to be that this would ensure cheap designer clothes for the masses, who would then re-elect it. Our EU partners were almost unanimous in declining to support the UK government in this - as I recall, only Sweden agreed. But after withdrawal we won't have to worry what the EU27 (or the EEA members) think, and given that the government will be casting around for some benefit to highlight to the electorate I have a horrible feeling that this will be back on the agenda.

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