IP & Technology

A UK Drinks company (the Brexit Drinks Company) has been successfully awarded an EU Trade Mark for the word BREXIT. The application process was not without its hiccups with the case going all the way to the Board of Appeal within the EU Intellectual Property Office (EUIPO). The initial application was objected to by the EUIPO on the grounds that it was descriptive and offensive.

Was it descriptive?

On the first point the EUIPO examiner considered that the word refers to the UK exiting the EU and that this was a term with which the EU public were all familiar.

As a result it concluded that it was descriptive and so could not function as a trade mark clearly indicating the origin of the goods concerned.

Was it offensive?

On the second issue the examiner argued that the mark if registered would be offensive as the average EU consumer would view it as representing “ an attempt to play down the importance of “BREXIT” as a serious momentum in modern European history.”

The Appeal decision

The Board of Appeal did not agree. In their view the offensive / moral principle grounds being relied upon by the examiner were not about bad taste, good manners or offence to personal feelings. It concluded that the word BREXIT had ‘no moral connotations whatsoever’.

More generally even if a trade mark might offend some of the public that was not a ground to prevent its registration. The Board also rejected the argument that the mark was descriptive as it was being filed to cover goods such as energy drinks and brewery products and did not refer to any information about them. Indeed it found that it was an entirely invented and imaginative term.

The Board of Appeal stated that “BREXIT embodies a sovereign political decision, entirely taken in conformity with the Lisbon Treaty and the UK’s constitutional requirements and it has no moral connotations whatsoever”. It also indicated that registration of a trade mark cannot be prevented just because the idea might offend a certain part of the public.

This seems to have been the right result here and was the first time the EUIPO has allowed a trademark grant where it includes the word BREXIT. A number of other such applications have been refused or withdrawn presumably for similar reasons as in the first instance above. However there are a number of pending applications –for example for BREXIT NAVIGATOR. This decision could well lead to new applications being made and granted for BREXIT over different types of goods and services.

Gill Grassie

Gill Grassie

Partner at Brodies LLP
Gill is a Partner in Brodies IP and IT dispute resolution team. Her work covers the whole gamut of contentious IP, IT and technology and a wide variety of sectors as disparate as luxury brands, oil & gas and renewables, pharmaceuticals and financial services.
Gill Grassie