The end of the transitional use period for Brexit cloned trademarks

With the end of the transitional period for Brexit cloned trademarks fast approaching, cloned UK marks could become vulnerable to cancellation for non-use. Vanessa Harrow shares what brand owners need to know about the changes and what steps they can take to ensure their intellectual property rights remain secure, valid and enforceable. 

As we approach the end of another year, we also move into a new chapter for owners of cloned UK trademark registrations. From 1 January 2026, use of a trademark in the EU alone will no longer be sufficient to maintain the validity of these UK rights.  

Brexit and cloned trademark rights: How did we get here? 

When the UK left the EU on 31 January 2020, the UKIPO took measures to ensure that the thousands of brand owners holding EU trademark and design registrations did not suddenly lose protection in the UK after Brexit. To achieve this, the UKIPO cloned EU rights to create equivalent UK national registrations.  

These comparable (or “cloned”) rights inherited their EU filing dates and history and, for the most part, are treated as equivalent to any other national UK registration. The big exception is the use requirement.  

Before Brexit, owners of EU trademark registrations were not under any obligation to specifically use their rights within the UK market, as they only had to demonstrate genuine use within the EU rather than within all EU member states. Following Brexit, owners of cloned trademarks would need to demonstrate genuine use in the UK for those marks, as they do for national UK registrations.   

To smooth the transition, a five-year transition period was introduced whereby owners of cloned registrations could rely on prior use within the EU to demonstrate genuine use, either to substantiate the grounds of an opposition/cancellation action and/or to defend a non-use cancellation action. This meant that where there had not been prior use in the UK, owners did not suddenly find themselves vulnerable to non-use claims.   

The transition period is ending on 31 December 2025. 

When and what is changing?  

From 1 January 2026, cloned Brexit trademark registrations will be subject to the same use requirement as any other national UK trademark registration. This means that only use within the UK will be relevant to show genuine use of these intellectual property rights.  

If cloned registrations have not been put to genuine use in the UK, they may become vulnerable to non-use cancellation, unless the owners can justify such non-use. Given that the threshold for reasons for non-use is quite high in the UK, commercial decisions or business strategy are simply not enough. In general, only reasons outside the trademark owner’s control, making it impossible or unreasonable to use the mark, will be accepted.  

With a vast number of comparable rights still on the UK Register, the end of the Brexit transition period presents a significant milestone for trademark owners.  

If a cloned right has not been put to genuine use in the UK and the rights holder does not have proper reasons for non-use, those rights cannot feasibly be relied upon in contentious proceedings and may be open to cancellation on the grounds of non-use.   

Brexit trademark clones: Practical considerations for brand owners 

• Conduct an IP audit: For owners of comparable rights, now is a good time to conduct an audit of intellectual property portfolio rights and usage to assess any UK trademark rights that may be at risk of non-use. If any vulnerability is identified, enforcement strategies should be tailored to accommodate the risks of not being able to demonstrate genuine use.  
• Assess your commercial position: Where a vulnerability is identified, trademark owners should also assess whether the UK is a genuine market of interest and, if so, take proactive steps to start or increase use in the UK. Keep in mind that to defend any non-use claims, the use shown must be genuine and cannot simply be a token use implemented simply to defeat non-use claims.  
• Collect evidence of use: Where there is existing use, or where use will be starting, now is also a good time to document that use and consider creating an evidence bank to ensure owners are in a good position to show genuine use should this be needed. Here, an AI-based tool, such as Questel’s proof of use management software, can provide much-needed support. 
• Address vulnerabilities: Where there is no use and commencing use is not possible, brand owners could also consider re-filing rights, although care must be taken not to cross the line into evergreening (where the re-filing of identical or similar trademarks to secure new five-year grace periods is considered to be acting in “bad faith”).
• Look for opportunities: The end of the transition period potentially opens the path for brand owners, as it is now possible to clear the UK register of trademarks that were cloned following Brexit, but where the owners have no actual interest in the UK market. Given the vulnerability of the cloned rights, it is to be expected that there will be an increase in non-use cancellation actions as brand owners seek to clear registrations that may otherwise present an obstacle to their activities in the UK market.   

How can Novagraaf help? 

Novagraaf specialises in helping brand owners navigate the Brexit trademark transition by assisting with intellectual property portfolio reviews, use audits and risk assessments. We provide advice and guidance on reviving dormant marks, preparing new filings and strengthening enforcement strategies. We can also support you to capture, classify and manage proof of trademark use, including through smart use of AI-powered document management software to automate the selection, analysis, classification, and archiving of all documents related to brands (invoices, advertisements, press clippings, social media, magazines, catalogues, brochures, and more). 

To ensure your UK trademark rights remain secure, valid and enforceable post-transition or to find out more about our evidence of use solutions, speak to your Novagraaf attorney or contact our UK team today. 

Vanessa Harrow is a UK Chartered Trademark Attorney and Managing Director, Trademarks at Novagraaf UK.