We UK lawyers view with interest the developments in the “Brexit cases”, resulting in appeals to the CJEU in 3 cases, as discussed in various previous posts on this blog, the latest being the summary (here) of the AG opinion in the first case, BASMATI.

The BASMATI case, and the related “Brexit cases” APE TEES and SHOPPI, are of particular interest to UK practitioners not because the facts relate to the aftermath of Brexit, but because fundamentally they all will in the end, we hope, confirm the answer to the question “What is the relevant date for the purposes of assessment of relative grounds disputes at the EUIPO?”

We are rather surprised by the consternation caused by the BASMATI and APE TEES GC decisions which state that earlier UK rights can be relied upon in the oppositions, despite the fact that UK rights are no longer valid rights on which to base an EU opposition.

In the UK, we are used to the fundamental principle that there is only one relevant date for the assessment of any legal decision. UK lawyers have had to become used to the principle developed in EU case law that, for EUTM relative grounds disputes, there are in effect two relevant dates, the first being the filing date of the opposed application and the second the date of the decision by the EUIPO, whether that be the opposition/cancellation decision or a subsequent decision of the Board of Appeal (BOA).

Emma Pettipher explains more in an article for the Wolters Kluwer Trade Mark Blog which you can read here.