Court of Justice case C-340/17P Alcohol Countermeasure Systems (International) v EUIPO

01 November 2017

We have received from the IPO notification of an appeal referred to the Court of Justice of the European Union (CJEU): case C-340/17P, an appeal brought on 7 June 2017 by Alcohol Countermeasure Systems (International) Inc. against the Judgement of the General Court (First Chamber) delivered on 29 March 2017 in case T-638/15. This case can also be viewed on the GOV.UK website.

The last of the pleas in law and main arguments reads as follows:

The fifth ground raises a public order issue: a UK earlier right shall not permit the cancellation of a EU mark in light of the Brexit process and article 50 of the European Union Treaty notification sent by the United Kingdom. Permitting such a cancellation would increase expenses and create unnecessary and disproportionate obstacles to unitary trade mark protection, while in 2 years or less, the United Kingdom will no longer be part of the EU unitary trade mark system. The General Court therefore violated the territoriality principle recognized by the 1883 Paris Convention and Article 17 of the Charter of Fundamental Rights of the European Union.

We have submitted IP Federation comments on the case as follows:

We refer to the fifth ground raised in the above-referenced appeal to the CJEU. This stance raises a significant number of concerns:

  1. the UK remains a fully-functioning member of the EU during the Brexit negotiation phase and therefore part of EU institutions such as the EUIPO with no alteration;
  2. accordingly, a UK trade mark should be treated no differently to a national trade mark granted in any other member state of the EU;
  3. speculation on the future relationship between the UK and the EU has no bearing on current trade mark law or its interpretation in the courts; and
  4. it has not been decided that, after the UK leaves the EU, it will no longer be part of the EU unitary trade mark system.

Whilst we fully anticipate that the CJEU will rebut this position, we are of the view that it was worth commenting on in any event, given how much of a mischaracterisation it presents.

Anyone else who wishes to comment on this we can e-mail by 1 November 2017.