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EU Intellectual Property Office blocks ‘BREXiT’ from registration as a trade mark

Written by Samuel O'Toole on 16 May 2019

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The EU Intellectual Property Office (EUIPO) has held that the term ‘BREXiT’ is devoid of distinctive character and therefore not capable of registration as a trade mark.

The EUIPO did not decide this overnight, in fact this matter began on 6th September 2016, when Brexit drinks Ltd sought to register a figurative ‘BREXIT’ logo in class 32 for ‘Energy drinks containing caffeine; beer’.

On 17 March 2017, the trade mark examiner refused the application under Article 7(1)(b) and (f), in conjunction with Article 7(2) of the EU Trade Mark Regulations (EUTMR). On the Article 7(1)(f) ground, interestingly, the examiner explained:

It is distinctly offensive to trivialise the link between the trade mark and one of the most important and unprecedented processes in the history of the United Kingdom and even the entire European Union for at least those members of the relevant public who have an average knowledge of politics.

On the Article 7(2) ground, the examiner explained that there is nothing about the sign ‘BREXiT’ that might, beyond its obvious meaning referring to the United Kingdom’s withdrawal from the European Union, enable the public to memorise the sign easily and instantly as a distinctive trade mark for the goods claimed.

On 9th May 2017, Brexit drinks Ltd filed an appeal against the decision and requested it be set aside and the application proceed to registration. The EUIPO remitted the decision to the Grand Board, at paragraph 50 of its decision, the Grand Board explained its opinion:

In the view of the Grand Board they do not possess any eye-catching feature that makes the mark memorable so as to endow it, as a whole, with any distinctive character. In fact the presence of the background evoking the Union jack flag merely accentuates the semantic content conveyed by the word element ‘BREXiT’

Overall, the Grand Board concluded that ‘BREXiT’ is not capable of being an indicator of commercial origin, instead it the general public will see the mark as being a reference to the UK’s decision to leave the EU. Accordingly, the General Board upheld the decision of the examiner and dismissed the appeal.

You can view the decisions here: https://euipo.europa.eu/eSearchCLW/#basic/*///number/0958%2F2017 and if you are unsure whether your trade mark application will make it past the examiner, why not speak to Lawdit where we would be happy to assist you.

If you'd like to know more about this article please send an email to Michael Coyle quoting the article title and any questions you might have, alternatively call the office number on 02380 235 979 or send an enquiry through our contact form.

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