Use it or lose it: comparable UK trade marks face 31 December 2025 deadline

Brand owners have until 31 December 2025 to ensure their comparable UK trade marks, created following Brexit, have been genuinely used in the UK, or risk losing them.

Background

As part of the post Brexit arrangements, the UKIPO automatically created “comparable” UK trade marks for all EU trade marks (EUTMs) that were registered by the end of the transition period on 31 December 2020. These UK rights retained the same filing and priority dates as their EU counterparts but are now entirely separate and governed by UK law. So far, these comparable marks have been shielded from non-use attacks thanks to a five year grace period. However, that window is coming to an end and closes on 31 December 2025.

What’s changing?

Under Section 46 of the Trade Marks Act 1994, a UK trade mark becomes vulnerable to revocation if it has not been genuinely used in the UK for a continuous period of five years.

For comparable UK trade marks created on 1 January 2021, use of the original EUTM in the EU including in the UK before Brexit was enough to keep these marks safe. But from 1 January 2026, any use in the EU prior to 1 January 2021 will no longer be relevant in the assessment of use of a comparable mark in the UK.

What are the risks?

If a comparable UK trade mark has not been used in the UK by 31 December 2025, it could be challenged by third parties in any trade mark dispute and/or revoked for non-use.

That could mean:

• Losing the UK trade mark registration entirely.
• Losing the benefit of the original EUTM filing or priority date.
• Being unable to enforce rights against conflicting or infringing UK marks.
• Needing to re-file the mark often at a higher cost and with increased risk of opposition.

This also presents a business opportunity where businesses may be able to challenge dormant comparable marks held by others to open up space on the register.

What should trade mark owners do now?

With the deadline fast approaching, there are steps brand owners should take to protect their rights:

1. Audit your portfolio:
   Start by identifying all comparable UK trade marks in your name and focus on those that have not been used in the UK since Brexit.

2. Assess genuine use in the UK:
   Check whether you have made genuine commercial use of each mark in the UK since 1 January 2021. Sales, advertising, packaging, UK facing e-commerce and distributor agreements may all qualify. Token use will not be enough.

3. Gather evidence:
   Keep and maintain records. Invoices, marketing and advertising materials, dated website screenshots, and distributor contracts and such like can all be useful in defending off a revocation challenge.

4. Take action before the deadline:
   If a mark has not been used yet, there’s still time. Develop a strategy, make preparations, if possible launch UK specific use campaigns now to protect your position before 1 January 2026.

If however there are no plans to use the comparable mark in the UK, then in due course, you may simply wish to forego renewing the mark.

What counts as “genuine use”?

To qualify as genuine use, such use must be real and commercial, not just administrative. Activities should show that the mark is being used in connection with the goods or services it covers.  Examples include:

• Product sales to UK customers
• UK targeted advertising (including social media)
• Online sales through UK facing platforms
• Packaging or point of sale materials used in the UK

Evidence must be clear and dated. Sporadic or insubstantial use may not be sufficient.

Final thoughts

If you own a comparable UK trade mark created on 1 January 2021 following Brexit, but have yet to use the mark in the UK, you now have less than six months to take action.

We would be pleased to assist you in any trade mark audit and/or advise you further in relation to your trade marks.  If you have any questions or would like to discuss any of the topics in this article, please contact Karen Lee in our Intellectual Property team.