When the UK formally left the European Union on 1 January 2021, all registered EU Trade Marks (EUTMs) were automatically cloned into equivalent UK registrations – approximately 2 million entries onto the UKIPO register. This mechanism ensured continuity of protection for brand owners without the need for re-filing or additional cost. To soften the impact of Brexit, a transitional period of five years was introduced, allowing rights holders to rely on use of their mark anywhere in the EU to demonstrate genuine use of the corresponding UK registration. As this transitional period draws to a close on 1 January 2026, brand owners must now assess whether their UK trademarks are adequately protected, and whether they can withstand scrutiny based on non-use.

The Importance of Genuine Use.

Under UK trademark law, registration alone is not sufficient to maintain enforceable rights. A trademark must be put to genuine commercial use within five years of registration, failing which it becomes vulnerable to revocation. Third parties, such as competitors seeking to clear the path for a new brand, may apply to revoke a registration on the grounds of non-use. According to UK Intellectual Property Office statistics, non-use revocation actions account for a significant proportion of contentious trademark proceedings each year, reflecting the strategic value of such challenges.

In infringement proceedings, lack of use is also commonly deployed as a defensive tactic. A defendant may counterclaim for revocation of the claimant’s trademark, potentially undermining the basis of the enforcement action entirely. This risk is particularly acute for cloned UK registrations that have remained unused since Brexit.

What Constitutes Use.

Use must be genuine and commercial in nature and not merely token activity intended to preserve rights. UK courts have consistently held that genuine use requires real economic activity, assessed considering the nature of the goods or services and the characteristics of the relevant market. For example, a single high value transaction, may suffice in a specialist industrial sector, whereas more frequent sales would be expected for consumer goods.

Evidence of use may include sales invoices, product packaging, marketing campaigns, website activity targeting UK consumers, or participation in UK trade fairs. Importantly, use must be in the United Kingdom. From 1 January 2026, use of a mark solely within the EU will no longer be capable of supporting the validity of the UK registration.

What Brand Owners Should Do Right Now.

With the deadline approaching, trademark owners should undertake a strategic review of their UK portfolios. This includes identifying cloned registrations that have not yet been used in the UK and assessing their commercial importance. Where use exists, owners should gather and organise evidence now, as reconstructing proof retrospectively can be difficult and costly.

Where marks are commercially valuable but unused, businesses should consider whether it is feasible to commence genuine UK use, even on a modest scale. Early steps such as launching a UK facing website, appointing a distributor, or undertaking targeted advertising may be sufficient, provided the activity is commercially credible.

Let Whitestone assist you for failure to act before the end of the transitional period may result in the loss of valuable UK trademark rights, increased exposure to competitors, and reduced leverage in enforcement actions. Proactive preparation is therefore essential to ensure continued brand protection in the UK in a post Brexit landscape.

© Lawrence Power 2025

Sources

Abion, Brexit-Cloned UK Trade Marks: Preparing for the 31 December Deadline
Brexit-Cloned UK Trade Marks: Preparing for The Deadline

UK Intellectual Property Office, EU trade mark protection and comparable UK trade marks: https://www.gov.uk/guidance/eu-trade-mark-protection-and-comparable-uk-trade-marks

Trade Marks Act 1994, Section 46 (Revocation for non use) https://www.legislation.gov.uk/ukpga/1994/26/section/46

Mewburn Ellis: Genuine Use of Trademarks: Genuine use of trade marks

UKIPO decision O/540/21 at passages (5) and (6) – summarises the principles to be applied in testing whether there is genuine commercial exploitation: https://www.ipo.gov.uk/t-challenge-decision-results/o54021.pdf

Evidence of Use: https://www.gov.uk/government/publications/trade-marks-standard-opposition/guidance-standard-opposition-proceedings-before-the-trade-marks-tribunal