The Agricultural Products, Food and Drink (Amendment) (EU Exit) Regulations 2019 (expired—not approved)

Prospective

Regulation 5

[X1 SCHEDULE 3 U.K. Regulation (EU) No 251/2014 of the European Parliament and of the Council: new provisions

Editorial Information

X1 This statutory instrument was made under a procedure whereby it ceases to have effect at the end of the period of 28 days beginning with the day on which it was made unless, during that period, the instrument was approved by a resolution of each House of Parliament. It was not approved by Parliament within that period and so has ceased to have effect.

PART 1 U.K. New Article 8a

“Article 8a U.K. Definitions: types of geographical indication

In Article 19a and Annex 2A any reference to:

(a) ‘a type 1A geographical indication’ means a geographical indication of the type described in column 2 of row 1 of the Types Table to which paragraph 1 or 2 of column 3 of that row applies;

(b) ‘a type 1B geographical indication’ means a geographical indication of the type described in column 2 of row 1 of the Types Table to which the provisions in column 4 of that row apply;

(c) ‘a type 2A geographical indication’ means a geographical indication of the type described in column 2 of row 2 of the Types Table to which paragraph 1 or 2 of column 3 of that row applies;

(d) ‘a type 2B geographical indication’ means a geographical indication of the type described in column 2 of row 2 of the Types Table to which the provisions in column 4 of that row apply;

(e) ‘a type 3A geographical indication’ means a geographical indication listed in column 2 of row 3 of the Types Table to which paragraph 1 or 2 in column 3 of row 2 of that table applies;

(f) ‘a type 3B geographical indication’ means a geographical indication listed in column 2 of row 3 of the Types Table to which the provisions in column 4 of row 2 of that table apply.”

PART 2 U.K. New Articles 19a and 19b

“Article 19a U.K. Transitional provisions: relationship with trade marks

1.   Unless paragraph 4 applies, an application to register a trade mark that was pending immediately before exit day or filed during the relevant period must be refused where, if the trade mark is registered, the use of the trade mark will contravene Article 20(2) in relation to a category A geographical indication.

2.   Unless paragraph 4 applies, an application to register a trade mark that was pending immediately before exit day or filed during the relevant period must be refused where:

(a) if the trade mark is registered, the use of the trade mark will contravene Article 20(2) in relation to a category B geographical indication, and

(b) after the application for the trade mark is accepted but before the trade mark is registered:

(i) in the case of a type 1B geographical indication:

(aa) the international agreement referred to in paragraph (c) of column 2 of row 1 of the Types Table enters into force, and

(bb) the entry into force of the international agreement is brought to the attention of the registrar before the trade mark is registered;

(ii) in the case of a type 2B or 3B geographical indication:

(aa) the Secretary of State publishes an Article 16 approval notice relating to the geographical indication, and

(bb) the Article 16 approval notice is brought to the attention of the registrar before the trade mark is registered.

3.   Where an application for a declaration of invalidity is made under the TMA (as applied by Article 19b(1) and modified by Article 19b(2)) in relation to the registration of a trade mark, the registration of a trade mark must be declared to be invalid, unless paragraph 4 applies, if:

(a) the application to register the trade mark was pending immediately before exit day or filed during the relevant period,

(b) the use of the trade mark contravenes, or will, if used, contravene, Article 20(2) in relation to the category B geographical indication, and

(c) in the case of a type 2B or 3B geographical indication, the Secretary of State publishes an Article 16 approval notice relating to the geographical indication on or after the day on which the trade mark application is accepted.

4.   This paragraph applies where a column 5 date applies in relation to a category A or B geographical indication and, taking account of any priority claimed in respect of an application to register the trade mark referred to in paragraph 1, 2 or 3(a) (as relevant) and on the basis of the information available to the registrar, it appears to the registrar that the date of filing of the trade mark application is earlier than the column 5 date that applies to the relevant category A or B geographical indication.

5.   As regards paragraph 1 or 2, a column 5 date does not apply in relation to a type 1A or 2A geographical indication where the EUIA referred to in paragraph (b) in column 2 of the row of the Types Table relating to the geographical indication provides that an application for a trade mark must be refused, regardless of when that application is filed, if the trade mark, if registered, will contravene a provision in the EUIA providing for the protection of the use of the geographical indication

6.   As regards paragraph 3, a column 5 date does not apply in relation to a type 1B or 2B geographical indication where the EUIA referred to in paragraph (b) in column 2 of the row of the Types Table relating to the geographical indication provides that the registration of a trade mark must be invalidated if, regardless of when the application that resulted in the registration of the trade mark is filed, the use of the trade mark contravenes a provision in the EUIA providing for the protection of the use of the geographical indication.

7.   A trade mark that could be used under Article 19(2) of EU Regulation 251/2014 immediately before exit day and could be renewed pursuant to that provision may continue to be used and renewed:

(a) notwithstanding that the use of the trade mark would contravene Article 20(2) in relation to a geographical indication registered by the Secretary of State under this Regulation;

(b) provided that no grounds for the invalidation or revocation of the trade mark exist in, or under, the TMA.

8.   Where paragraph 7 applies to the use or renewal of a trade mark, this does not affect the use of a geographical indication entered on the United Kingdom's GIs Register by the Secretary of State:

(a) following a decision by the Secretary of State to grant an application to register the geographical indication submitted under Article 11;

(b) under the second paragraph of Article 16.

9.   In this Article:

(a) ‘an application to register a trade mark’ means an application to register a trade mark filed under the TMA;

(b) ‘a category A geographical indication’ means a type 1A, 2A or 3A geographical indication;

(c) ‘a category B geographical indication’ means a type 1B, 2B or 3B geographical indication;

(d) ‘the column 5 date’, in relation to a geographical indication that is a category A or B geographical indication, means the date specified, or provided for, in column 5 of the Types Table in the row relating to the relevant type of geographical indication;

(e) ‘date of filing’:

(i) in the case of an EUTM-based trade mark application, means the filing date referred to in paragraph 25(2)(a)(i) of Schedule 2A to the TMA for the existing EUTM application;

(ii) in the case of an ITM-based trade mark application, means:

(aa) in the case of an application for the registration of a trade mark to which paragraph 28 of Schedule 2B to the TMA applies, the date referred to in paragraph 28(2)(a) of that Schedule for the existing ITM application or existing request for EU extension (as the case may be);

(bb) in the case of an application for the registration of a trade mark to which paragraph 29 of Schedule 2B to the TMA applies, the date referred to in paragraph 29(2)(a) of that Schedule for the existing ITM application or existing request for EU extension (as the case may be);

(iii) in any other case, has the meaning given by section 33 of the TMA;

(f) ‘EUTM-based trade mark application’ means an application to register a trade mark to which paragraph 25(1) of Schedule 2A to the TMA applies that is made within the period specified in paragraph 25(2) of that Schedule;

(g) ‘existing EUTM application’ has the same meaning as in paragraph 24 of Schedule 2A to the TMA;

(h) ‘existing ITM application’ has the same meaning as in paragraph 27(1)(a) of Schedule 2B to the TMA;

(i) ‘existing request for EU extension’ has the same meaning as in paragraph 27(1)(b) of Schedule 2B to the TMA;

(j) ‘ITM-based trade mark application’ means an application to register a trade mark to which paragraph 28(1) or 29(1) of Schedule 2B to the TMA applies that is made within the period specified in paragraph 28(1)(c) or 29(1)(c) (as the case may be) of that Schedule;

(k) ‘the registrar’ has the meaning given by section 62 to the TMA.

10.   Any reference in this Article to:

(a) ‘priority claimed in respect of an application’:

(i) in the case of an EUTM-based trade mark application, means any priority claimed in respect of the existing EUTM application referred to in paragraph 25(2)(a)(ii) of Schedule 2A to the TMA;

(ii) in the case of an ITM-based trade mark application, means any priority claimed in respect of the existing ITM application or the existing request for EU extension referred to in paragraph 28(2)(b) or 29(2)(b) (as the case may be) of Schedule 2B to the TMA;

(iii) in any other case, means any priority claimed in respect of the application pursuant to section 35 of the TMA;

(b) an application to register a trade mark that was ‘pending immediately before exit day’ is to an application that was neither refused, nor resulted in the registration of the trade mark that is the subject of the application, before exit day;

(c) a trade mark includes a reference to:

(i) a collective mark as defined in section 49(1) of the TMA;

(ii) a certification mark as defined in section 50(1) of the TMA.

Article 19b U.K. Application and modification of trade mark provisions

1.   For the purpose of Article 19a, the following provisions of the TMA apply, with the modifications, in the case of section 47(3) and (5), 74(1), 76(1) and 77(1), specified in paragraph 2:

(a) subsections (3) to (5) and (6) of section 47 (invalidation of trade marks) in relation to an application to invalidate a trade mark referred to in Article 19a(3);

(b) section 72 (registration to be prima face evidence of validity);

(c) section 73 (certificate of validity of contested application);

(d) section 74 (registrar's appearance in proceedings involving the register of trade marks);

(e) section 75 (definition of ‘the court’);

(f) section 76 (appeals) except for subsection (5);

(g) section 77(1) (persons appointed to hear and determine appeals).

2.   The modifications are:

(a) section 47 applies as if:

(i) in subsection (3), in the words before paragraph (a), after ‘invalidity’ there were inserted ‘made under this section, as applied by Article 19b(1) of Regulation (EU) No 251/2014 of the European Parliament and of the Council on the definition, description, presentation, labelling and the protection of geographical indications of aromatised wine products’;

(ii) in subsection (5), for ‘grounds of invalidity exist’ there were substituted ‘ground for invalidity specified in Article 19a(3) of Regulation (EU) No 251/2014 of the European Parliament and of the Council exists’;

(b) section 74(1) applies as if, for the words from ‘for’ to ‘the registrar’ there were substituted ‘for a declaration of the invalidity of the registration of a trade mark the registrar’;

(c) section 76(1) applies as if:

(i) in the first paragraph, for the words from ‘this Act’ to the end there were substituted ‘made under Article 19a of Regulation (EU) No 251/2014 of the European Parliament and of the Council’;

(ii) the second paragraph were omitted;

(d) section 77(1) applies as if, at the end there were inserted ‘as applied by Article 19b(1) of Regulation (EU) No 251/2014 of the European Parliament and of the Council’.

3.   In the case of the following proceedings, the rules made under section 68 or 69 of the TMA apply to those proceedings as they apply to proceedings involving an application of the type referred to in section 74(1)(b) of the TMA:

(a) an application to invalidate a trade mark referred to in Article 19a(3);

(b) an appeal to the appointed person from a decision of the registrar in relation to an application referred to in paragraph (a).”

PART 3 U.K. New Annex 2A

“ANNEX 2A U.K. TYPES OF GEOGRAPHICAL INDICATION TO WHICH ARTICLE 19A APPLIES

PART A U.K. TYPES OF GEOGRAPHICAL INDICATION (THE TYPES TABLE)

Column 1Row No.	Column 2The name, or a description, of the geographical indication	Column 3Type A provisions	Column 4Type B provisions	Column 5The specified date
1.	A geographical indication that: (a) relates to a geographical area in a third country, (b) was protected in the European Union immediately before exit day pursuant to an EUIA to which the European Union and the third country were contracting parties, and (c) must be protected in the United Kingdom pursuant to an international agreement to which the United Kingdom and the third country are contracting parties.	1. A geographical indication that is on the United Kingdom's GIs Register when the paragraph 1 trade mark application is accepted and is entered on that register pursuant to the second paragraph of Article 21. 2. A geographical indication that is not on the United Kingdom's GIs Register when the paragraph 1 trade mark application is accepted but must be protected in the United Kingdom pursuant to an international agreement to which the United Kingdom and the third country are contracting parties that enters into force before the paragraph 1 trade mark application is accepted.	A geographical indication that is not on the United Kingdom's GIs Register when the relevant trade mark application is accepted but must be protected in the United Kingdom pursuant to an international agreement to which the United Kingdom and the third country are contracting parties that enters into force on or after the relevant trade mark application is accepted.	The relevant EUIA-based date that applies to the geographical indication in relation to the EUIA referred to in point (b) of column 2.
2.	A geographical indication that: (a) relates to a geographical area in a third country, and (b) was protected in the European Union immediately before exit day pursuant to an EUIA to which the European Union and the third country were contracting parties.	1. A geographical indication that is on the United Kingdom's GIs Register when the paragraph 1 trade mark application is accepted and is entered on that register following the approval of an application to register the geographical indication submitted to the Secretary of State under Article 11 during the relevant period. 2. A geographical indication: (a) that is not on the United Kingdom's GIs Register when the paragraph 1 trade mark application is accepted, (b) for which an application to register the geographical indication is submitted to the Secretary of State under Article 11 during the relevant period, and (c) for which an Article 16 approval notice relating to the application is published before the paragraph 1 trade mark application is accepted.	A geographical indication: (a) that is not on the United Kingdom's GIs Register when the relevant trade mark application is accepted, and (b) for which an application to register the geographical indication is submitted to the Secretary of State under Article 11 during the relevant period and that application: (i) is not submitted before the relevant trade mark application is accepted, or (ii) is submitted before the relevant trade mark application is accepted but for which an Article 16 notice relating to the application to register the geographical indication is not published before the relevant trade mark application is accepted.	The relevant EUIA-based date that applies to the geographical indication in relation to the EUIA referred to in point (b) of column 2.
3.	The following geographical indications: (a) Nürnberger Glühwein; (b) Samoborski bermet; (c) Thüringer Glühwein; (d) Vermouth de Chambéry; (e) Vermouth di Torino.	See the entry in row 2 of this column.	See the entry in row 2 of this column.	1. In the case of the following geographical indications, 17th December 1991: (a) Nürnberger Glühwein; (b) Vermouth de Chambéry; (c) Vermouth di Torino. 2. In the case of Thüringer Glühwein, 2nd November 1996. 3. In the case of Samoborski bermet, 1st July 2013.

1.   In the table in this Part:

(a) ‘an Article 16 notice’ means a notice published by the Secretary of State under the second paragraph of Article 16;

(b) ‘the European Commission's GIs Register’ means the register maintained by the European Commission under Article 21 of EU Regulation 251/2014 M1 ;

(c) ‘the paragraph 1 trade mark application’ means the application to register a trade mark referred to in Article 19a(1);

(d) ‘the relevant trade mark application’ means the trade mark application referred to in Article 19a(2) or (3)(a), as relevant;

(e) ‘the relevant EUIA-based date’ means the relevant EUIA-based date determined in accordance with Part B.

PART B U.K. THE RELEVANT EUIA-BASED DATE

2.   In the table in Part A, in a case where the relevant EUIA-based date applies, the relevant EUIA-based date means:

(a) the date provided for in paragraph 3, or

(b) where paragraph 3 does not apply, the date provided for in the relevant point of paragraph 4, as relevant to the geographical indication.

3.   In a case where the EUIA referred to in paragraph (b) in column 2 of the row of the Types Table relating to a geographical indication contained priority provisions that applied to the geographical indication, the relevant EUIA-based date is the priority date provided for in the EUIA that applied to that geographical indication.

4.   In a case of a type 1 or 2 geographical indication to which paragraph 3 does not apply, the relevant EUIA-based date is:

(a) in a case where the geographical indication was protected in the European Union immediately before exit day pursuant to an amendment made to the EUIA (without the need for further action to be taken under the EUIA), the date on which the amendment entered into force;

(b) in a case where the geographical indication was protected in the European Union immediately before exit day pursuant to a provision in the EUIA that was provisionally applied before exit day (without the need for further action to be taken under the EUIA), the date on which the provision was provisionally applied;

(c) in a case where the geographical indication was protected in the European Union immediately before exit day pursuant to an amendment made to the EUIA that was provisionally applied before exit day (without the need for further action to be taken under the EUIA), the date on which the amendment was provisionally applied;

(d) in a case of a geographical indication that was protected in the European Union immediately before exit day following the submission and processing of a request, or application, for protection or assessment (however described) under a provision in the EUIA providing for such requests, or applications, the date the request, or application, for protection or assessment was submitted under the EUIA;

(e) in any other case, including a case where the geographical indication was protected in the European Union immediately before exit day pursuant to provisions in the EUIA that applied from the date that the EUIA entered into force (without the need for further action to be taken under the EUIA), the date on which the relevant EUIA entered into force.

5.   Any reference in this Part to:

(a) ‘the priority date’ means the date provided for in priority provisions in an EUIA as the date that must be taken into account when determining whether an application for a trade mark may be granted, including:

(i) a calendar date specified in the EUIA;

(ii) a date relating to the happening of a specified event;

(b) ‘priority provisions’ means provisions in an EUIA that governed the relationship between trade marks and geographical indications and that provided (however expressed):

(i) that, in the circumstances specified in the EUIA, an application for a trade mark must be refused if the application for the trade mark was filed after a date provided for in the EUIA,

(ii) that, in the circumstances specified in the EUIA, the registration of a trade mark must be invalidated if the application that resulted in the registration of that trade mark was filed after a date provided for in the EUIA, or

(iii) for both the refusal of applications for trade marks, and the invalidation of the registration of trade marks, as provided for in points (i) and (ii);

(c) ‘without the need for further action to be taken under the EUIA’, in relation to a geographical indication protected in the European Union immediately before exit day pursuant to an EUIA, means that the provisions in the EUIA providing for the geographical indication to be protected in the European Union did not require a request or application (however described) to be submitted by the contracting third country under the EUIA in relation to the protection of the geographical indication or require an assessment to be carried out under the EUIA in relation to the geographical indication.”]

Marginal Citations

M1 The European Commission's register of geographical indications of aromatised drinks based on wine products is available electronically from

https://ec.europa.eu/info/sites/info/files/food-farming-fisheries/food_safety_and_quality/documents/register-gi-aromatised-wine-products_en.pdf

. A hard copy of the register as it stood immediately before exit day is available for inspection free of charge at the offices of the Department for Environment, Food and Rural Affairs, Second Floor, Seacole Block, 2 Marsham Street, London SW1P 4DF.