The vulnerability of UK comparable trade marks: Use requirements post 2025

Following Brexit, a significant shift occurred in the landscape of trade mark rights in Europe. One of the most notable outcomes was the automatic creation of UK comparable trade mark rights for owners of existing EU Trade Marks (EUTMs).

While this ensured the continuity of protection in the UK, these “cloned” rights are now facing increasing scrutiny—particularly in relation to use requirements in opposition and non-use cancellation proceedings. As we approach the five year anniversary of “IP Completion Day” on 31 December 2025, the rules are set to change, potentially leaving some rights holders vulnerable if they have not implemented use of the goods and services covered by their cloned trade mark registrations in the UK.

Background: The creation and function of comparable UK trade marks

On 1 January 2021, the UKIPO automatically created a comparable UK trade mark for every registered EUTM. Each of these marks retains the original EUTM filing date as well as any priority or seniority claims. These comparable marks exist independently of their EU counterparts and are subject to UK law.

One critical area of divergence between UK and EU trade mark regimes post-Brexit concerns the requirement to show genuine use of the mark. Under UK law, a trade mark must be used in the UK within five years of registration (or five years from the end of any previous use period) to maintain its enforceability and avoid vulnerability to revocation. However, to ease the transition post Brexit, the UKIPO allowed owners of comparable UK marks to rely on use of the “parent” EUTM in the EU (rather than the UK) for a transitional period when facing non-use actions or bringing oppositions.

Use requirements in opposition and cancellation actions

For opposition actions, if a UK comparable trade mark is more than five years old at the time an opposition is filed, the opponent may be required to prove use. Since many of these marks were cloned from EUTMs that had not necessarily been used in the UK, during the transitional period use in the EU prior to 1 January 2021 was allowed to be relied on to meet this requirement.

Similarly, in cancellation actions (specifically, revocation for non-use), the owner of a UK comparable mark could rely on pre-2021 use in the EU to defend their registration, provided the use was genuine and directed toward the EU market as a whole.

This transitional protection aimed to prevent owners of EUTMs who had not yet expanded into the UK market from being penalised simply because of the Brexit-related jurisdictional shift.

The current position

UK comparable trade mark owners may continue to rely on genuine use of the original EUTM in the EU prior to 1 January 2021 to defend their marks or oppose others, so long as that use falls within the relevant five-year period for use requirements. However, this window will close on 31 December 2025.

For marks whose relevant use period includes any time before 1 January 2021, EU use may still be considered. However, for use periods beginning entirely after that date, the UKIPO requires evidence of genuine use within the UK territory. This means that, for newer proceedings, such as those filed in 2024 onwards, comparable UK marks with no UK use since Brexit are more vulnerable to being revoked or may be less effective as an earlier right in oppositions, depending on the quality and quantity of that use, as well as the nature of the goods and services.

Note that use of a trade mark must be demonstrated to be genuine, rather than token use made purely for the purposes of maintaining a registration, but the use does not necessarily have to be quantitively significant.  The acceptability of the evidence of use relied on in UKIPO proceedings will often depend on the nature of the proprietor’s business and of the goods or services protected.

Looking ahead: The end of 2025 and the new use rule

The key date for rights holders to note is 1 January 2026. From that point, use of a trade mark in the EU will no longer count toward proving use of a UK comparable mark in any UKIPO proceedings.

This change significantly increases the vulnerability of UK comparable trade marks that have not been used in the UK since Brexit. For example, a comparable UK mark registered in 2016 would, by 2026, need to demonstrate genuine use in the UK between 2021 and 2026 to avoid revocation or to be relied on as an earlier right in an opposition.

Strategic considerations for trade mark owners

With the transitional period soon ending, rights holders must act now. Owners of UK comparable trade marks should:

1. Carry out an audit of their portfolios to identify trade marks which are at risk of cancellation due to lack of genuine UK use.
2. Begin or bolster commercial use of marks in the UK, ensuring it is well-documented and can be evidenced in proceedings.
3. Consider re-filing or rebranding where use cannot be demonstrated or is unlikely to occur (although rights holders must exercise caution when re-filing in such circumstances, see our article on this point MONOPOLY – Trade Mark Appeal Edition: )
4. Review enforcement strategies, particularly for oppositions where use evidence may be required.

If looking for advice on what action would be appropriate in relation to you or your client’s trade mark portfolio ahead of 1 January 2026, we are on hand to assist in advising on and implementing strategies to make sure that your brand is in the strongest position possible. Contact our trade marks team for more information at trademarks@vennershipley.co.uk.