The following IP Q&A produced in partnership with Bonita Trimmer of Browne Jacobson provides comprehensive and up to date legal information covering:
The EU principle of exhaustion of trade mark rights currently has effect in the UK by virtue of two pieces of legislation:
section 12 of the Trade Marks Act 1994 (TMA 1994) (which implements article 7 of Directive 2008/95/EC) in respect of national trade marks, and
article 13 of the Council Regulation (EC) No 207/2009 (as amended by Regulation (EU) 2015/2424) (the EU Trade Mark Regulation) in respect of EU trade marks
Both the above provide that trade mark rights cannot be enforced against goods which have been put on the market bearing the relevant trade mark ‘in the European Economic Area’ by the trade mark owner or with his consent, unless there are ‘legitimate reasons’ for the owner to be able to do so.
When the UK exits the EU, TMA 1994, s 12 will continue in force until it is amended. However, subject to the provisions of the anticipated European Union (Notification of Withdrawal) Act 2017 and any related legislation, the EU Trade Mark Regulation will, at some point, cease to have effect in the UK.
The government may have a choice as to what model of exhaustion of rights it wishes to apply in the UK going forward and will need to enact legislation to implement it. The main possibilities are:
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