BREXIT UPDATE – IP AND TRADEMARKS

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The Giftware Association has been researching the rights of EU and community registered trademarks after Brexit. Brexit has brought with it many questions in relation to trade, import and export and with no clear answers yet and a back and forth between Brussels and the UK, one question that has been prominent amongst the minds of many of our designer members or members who have registered designs Is, ‘Will your EU wide IP rights still be protected if they were issued in the UK, after Brexit’? Fortunately ,we now have a bit more clarity on the subject, as on the ‘draft agreement’ of the terms of withdrawal of the UK from the EU, whilst this is still very much a draft there was a lot to be hopeful about in terms of trademarks and community designs following the UKs exit on 29th March 2019. Here are the key findings that will affect your rights and you will need to know

  • A Transition period until 31 December 2020 will ensure that EUs intellectual property regimes will continue to apply within the UK. This transition period will mean ‘business as usual’ for intellectual property rights until the end of 2020.

 

  • After the transition period, the UK has promised there will be an equivalent or ‘cloned’ version of EU trademarks and community designs registered or granted on or before 31 December 2020 without the need for re-evaluation. This should carry the same amount of protection as the current EU ones.

 

  • EU trade mark or Community design applications which are pending at the end of the transition period will not be automatically cloned. The applicant will have a period of nine months from the end of the transition period during which it can file an application in the UK with the same filing and priority dates as its EU counterpart.

 

  • The cloned UK trade mark shall not be revoked on the grounds that the corresponding EU trade mark has not been put to genuine use in the UK before the end of the transition period.

 

  • The UK shall take measures to ensure that owners of international trade marks or designs registered through the Madrid system for the international registration of marks designating the EU or through the Hague system for the international deposit of industrial designs and obtained before the end of the transition period, will continue to enjoy the same protection in the UK.

 

  • Following the transition period, the EU Intellectual Property Office (EUIPO) will not recognise the reputation of an EU trade mark which is based on use in the UK. Likewise, the UK IPO is unlikely to recognise a reputation claimed in respect of a UK trade mark if the reputation is claimed on the basis of the original EU trade mark outside of the UK. However, until the end of the transition period, a reputation claimed in respect of an EU trade mark will still apply to the UK.

 

  • IP rights which were exhausted before the end of the transition period will remain exhausted both in the EU and in the UK.

 

  • The cloned UK trade mark or design will enjoy the same protection period like its EU counterpart.

This draft has been largely welcomed by the IP community but there are still important issues that remain, the main one being that this is still a draft document, so in its very nature anything in it could live and die within the document as it goes through changes, and as Brexit is still very much up in the air, at least there are processes in place that cover IP and trademark rights.

To read more about the stance on IP issues then visit the official government website dedicated to letting you know any updates and the current state of the issue.

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BREXIT CUSTOMS UPDATE

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The Giftware Association is proud to bring you the latest news on Bexit, as much as we know of it and how it will affect our members. As there have been a couple of changes to the government over the last few weeks and new deals now on the table. Our customs expert Barbara Scott, from Customs Associates has very kindly provided us a piece on a no deal Brexit and to be prepared for any outcome.

With time running out for the UK and the EU to decide on the basis of a new arrangement for trade in goods when the UK leaves the EU on 29th March next year, businesses should be considering what the consequences may be should there be “no deal”.  Of course, we are hoping for a transition period, during which everything remains as it is today for trade both within and out with the EU, but the European Commission wishes that to end before 2021.

Currently, goods traded between the UK and EU are not subject to any import duty and, for supplies to VAT registered businesses, import VAT charges.  In the worst case scenario, ie with no deal, when you sell goods customers in the EU, they would have to pay import duties at the same rates that currently apply to non-EU imports.  Also, the goods would require an export declaration to leave the UK and an import declaration to enter the EU – this would be additional cost for your customer who may also, depending on the type of goods and the applicable rules within the EU member state of arrival, need to pay import VAT.  Similarly, for goods received into the UK from the EU, you would have to pay import charges which, initially at least, would be the same rates as those applied to goods imported from non-EU countries today.

Of course, this is not a position that either the UK Government or the EU wants, particularly because of the Irish land boundary where border controls would be unacceptable. So, what is likely?

Everything is still open for negotiation for “Day 1”, be that next March or the beginning of 2021.  It is now recognised that a “soft border” between the UK and EU facilitated by technology is not going to be available in the required timescales. The Government White Paper published last week proposes that there should be a free trade arrangement resulting in little change and certainly no customs clearances on goods moving between the UK and EU.  But, if EU or UK duty rates change (for example if the UK no longer applied high tariffs on Chinese ceramic kitchenware) there would be a complex system for dealing with imports into the UK which are destined for both the UK and EU markets; there would be the option for businesses that are authorised by HMRC as trusted traders to pay the higher rate of duty on the goods but then claim a repayment of the duty on the goods that are placed on the UK market.  The White Paper proposes that the mechanics for obtaining the repayment should be simple but clearly there would need to be robust audit processes for ensuring the correct duties are paid.

However, we need not get too excited about the detail just yet as the proposal has to get past the UK and EU politicians first!  In the meantime, we are told that HMRC is preparing for no deal as, just in case it should happen, they want to minimise disruption as much as they are able.  The European Commission has also issued a paper this week urging the customs authorities and businesses in the EU27 countries to make preparations for the worst outcome in March next year.  GA members must consider this too, especially those that have only traded within the EU before.  HMRC has promised that, as soon as it can, it will publicise what business needs to do – it’s just that, unless our politicians get a move on, there may not be much time for business to carry out those preparations.

BEST OF BRITISH – SHANGAI, BRITISH GROUP STAND

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BJGI will be working collaboratively with UKFT and BFA with Best of British in Shanghai on a group gift, jewellery, fashion, accessories and textiles stand from 18th to 21st October 2018.

International Best of Britain 1.jpgNow in its second season, Best of British is an annual hybrid trade and public-facing event which aims to present up to 250 quality British brands to Chinese buyers, professionals and consumers across all consumer goods sectors. In a market where retail is still developing, the main focus of the event is promotion to trade contacts and consumers.

Stands usually start at £4500 each but BJGI has negotiated a group stand space for BJGI members with a basic pod stand fit supplied by the show organisers for gift/jewellery/accessories (table top only) at £1500 (other options may be available at a higher cost). Please note that this is a BJGI member offer for exhibitors that are new to the show.

In addition, companies will be expected to send a representative and pay for their travel, visa and accommodation for set up and the show itself, as well as shipping of any samples but the organisers will put together a package on this. BJGI members will benefit from the members’ rate on their ATA Carnet.

In order to confirm the space, BJGI will need to have 10 companies booked and paid up by the first week of June. In addition to the pod costs, BJGI will charge a management fee to cover its travel and local costs of £300 plus VAT per company or brand and will offer an interpreter service at additional cost to be shared between the participants.

The group will be accompanied by a representative and there will be a pre-event market briefing.

Companies showing in China are strongly advised to have secured their Chinese trade marks to avoid trademark squatting. If you need advice on this, please contact Rebecca.gough@batf.uk.com

The pods will include approximately 1 m of space (to be confirmed) with a table top for gift/jewellery and/or accessories.

The event is not grant supported but the prices include a discount from the show organisers. The British Consulate General, the China Britain Business Council and the Government’s GREAT campaign are closely associated with the event as a promotion and awareness campaign of British quality in China.

Additional International opportunities

BJGI operates a comprehensive calendar of events to help UK businesses within the sector to sell internationally.  BJGI will be taking UK groups to the following events:

NY Now – New York, USA.  12 – 15 August 2018.

Paperworld/Creativeworld – Frankfurt, Germany. 26-29 January 2019.

NY Now – New York, USA. 03-06 February 2019.

Ambiente – Frankfurt, Germany. 08-12 February 2019.

Inhorgenta – Munich, Germany.  22-25 February 2019.

Hong Kong International Jewellery Show – Hong Kong. 28 Feb-04 March 2019 

For further information about Best of British or any of the events listed above, please contact Rebecca Gough, t: 0121 237 1119 or email: rebecca.gough@batf.uk.com

 

EUROPEAN REGULATION NEWS

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On the 27th March the European Commission published Implementing Regulation EU 2015/519 extending the anti-dumping duty on certain iron and steel fasteners originating in the People’s Republic of China and also consigned from Malaysia for a further five years.

Following on from a request from the European Federation for Table and Ornamental ware, this anti-dumping measure on Chinese imports, which is about the expire, is now going to continue for at least another 15 months while the Commission undertakes a review.

See the attached notice which explains what importers and producers need to do if they want to input into the review – you will need to act fast.

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Anti-Dumping Duty is an Import Duty charged as well as normal Customs Duty, and is applied across the EU. It allows the EU to take action against goods sold at less than their normal value, which is the price for ‘like goods’ sold in the exporter’s home market.

The Review identified, ”several elements of concern, including large spare capacity available in the PRC, continuation of dumping and underselling practices worldwide, planned development of production capacity, product range and product complexity in the PRC, as well as growing trade barriers in other main third countries markets”. On the other hand, the investigation said: “Union consumption has been stagnating in the last five years” leading to “a state of vulnerability of the Union industry… characterised by a certain degree of spare capacity, low profits and business uncertainty”. The Review determined that “the repeal of the measures would with all probability lead to the sudden return of Chinese dumped imports, and that this would weaken the position of the Union industry in its core market.”

READ THE WHOLE REVIEW HERE – Commission notice 15 May 2018 ceramic tableware China ER initiation (002)

ARE YOU READY FOR GDPR?

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With GDPR just around the corner is your company prepared? we have been preparing our members over the past few months on what to expect on May 25th and how best to prepare your business, see below what you should and shouldn’t say during a conversation revolving around GDPR

DON’T SAY DO SAY
GDPR? What is that? I know about the General Data Protection Regulations, and how it will affect me
No worries, the EU regulation will need to be transposed into national law As the GDPR is a regulation and not a directive, it is immediately applicable to all EU member states, and yes that includes the UK even after Brexit
I hear that various EU countries are currently debating their own new data protection laws National laws may supplement GDPR, where permitted, however, GDPR remains the core law
I’m sure I can wait a little while, there must be a grace period The regulations came into date in 2016 and organisation have had two years to prepare themselves already
It doesn’t apply to me, I’m not a big company It applies to all organisations, even public authorities!
This is an EU regulation, due to Brexit we are not now going to be part of the EU Even due to Brexit, GDPR law will apply to the UK
I do not hold “personal” data I hold and use personal information of my employees, clients, suppliers, service providers and users etc. All companies will hold something resembling personal data
I hold no personal data, I only hold business data Even contact details of corporate clients are covered by the regulation of personal data
I am not doing anything bad or interesting with this data The regulations require me to implement a set of compliance measures and tools, regardless of how I use the data.
I will not be ready for 25th May, there is no use even trying It is never too late to start, as long as I am seen to have started my GDPR journey, it will stand me in a better light with the ICO
I missed the deadline, and nothing happened, there is no hurry, I will deal with this when I have time Some compliance is better than no compliance. Showing that you have started work on the project is better than showing nothing. You never know when a data complaint that could come in resulting in a serious fine.
I am just going to use standard material borrowed from other companies or found online…that will be enough I know that complying with GDPR is not a checkbox exercise, it will require me to analyze our own data and specific strategic thinking for my organisation
I will recruit someone new to carry out this task I will need someone who is reliable and knows the company but also with the appropriate skills, let’S avoid false economies.
I will delegate…my responsibility I will be accountable and can only delegate the work and not the responsibility. I need to be involved
I will appoint a DPO (Data Protection Officer) who will be under my full control. I can even use this opportunity to shift my responsibility over to the DPO I will verify if I need to appoint a DPO. If needed, I understand that this person must be independent. This role is to inform and advise us, to monitor compliance and act as a contact person. The responsibility for compliance will remain within the organisation. I can also contact the ICO for more info.
I do not want to spend money with no return on investment! It does not pay to be penny wise and pound foolish! I will use this opportunity to improve our business processes and to leverage more efficiently my databases (It is a great opportunity to have a data cleanse on what data we hold and what we don’t need)
Seriously, what is the risk of non-compliance? Very limited surely! I would rather avoid the consequences of non-compliance. Sanctions by EU data protection authorities may prevent me from using my database for my core activities or even materially impair me financially (as sanctions can go as high as 20 million or 4 % of global turnover) in most cases it will cause damage to reputation and can incur criminal liability.

For more information contact my colleague Luke on luke.palmer@ga-uk.org or speak to the Information Commision office who are best placed to guide you.