As 2025 draws to a close, brand owners face an important deadline that could affect their UK trade mark rights. From 1 January 2026, it is no longer possible to rely on evidence of use in the EU to maintain the validity of UK comparable trade marks (often called “Brexit clones”). This marks the end of the grace period for use, originally set out in the UK/EU Withdrawal Agreement.
Why Were UK Comparable Trade Marks Created?
When the UK left the EU, the UK Intellectual Property Office (UKIPO) automatically created comparable UK trade marks for all EU Trade Marks (EUTMs) registered before 1 January 2021. These new UK rights:
- Kept the original filing and priority dates;
- Carried prefixes UK009 (for EUTMs) or UK008 (for International Registrations designating the EU); and
- Became independent UK rights governed by UK law.
The Five-Year Rule and What Changes in 2026
Under UK law, a trade mark can be revoked if it hasn’t been genuinely used in the UK for five years. Following Brexit, and to avoid immediate vulnerability to UK non-use challenges, the Withdrawal Agreement allowed owners of UK comparable marks to rely on genuine use in the EU made prior to 1 January 2021 for a further 5-year grace period, expiring on 31 December 2025. During the grace period, genuine use in the EU dating from before 1 January 2021 could still be relied upon as use in the UK for UK proceedings (oppositions, invalidations, and non-use cancellations).
From 1 January 2026, only genuine use in the UK will count. EU use, no matter how extensive, will no longer help.
What This Means for Brand Owners
If your UK comparable marks haven’t been used in the UK since 1 January 2021, they could be at risk of revocation for non-use and you may not be able to rely on them as earlier rights for the purpose of enforcement.
“Genuine use” means:
- Commercial use aimed at UK consumers;
- More than token activity; and
- Evidence such as sales, marketing, and distribution efforts.
What Should You Do Now?
Before the year ends:
- Audit your portfolio: Identify UK comparable marks (look for prefixes UK008 or UK009) that may be vulnerable.
- Gather evidence: Collect proof of UK use such sales data, marketing materials, distribution records.
- Boost UK activity: If a mark is important, consider increasing UK presence, including via licensees.
- Plan enforcement: Review strategies for oppositions and disputes.
- Consider alternatives: If UK use isn’t possible, think about rebranding, consolidating around stronger marks, or filing new applications (but avoid “evergreening,” which may be seen as an indication of bad faith).
For tailored advice on audits, evidence, or enforcement, contact our trade marks team.
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