Brexit is Inescapable — Even in the Trademarking World

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Brexit is Inescapable — Even in the Trademarking World

About the Author:

Kathy Van Der Herten
Senior Director, Product and Development

When 52% of the United Kingdom’s population voted to leave the European Union on June 23rd 2016, very few could have predicted all of the implications it would have on industries outside of politics, from retail and banking to beyond. But surely almost no one could have predicted that the ‘Brexit’ word itself would be trademarked…for an energy drink.

In September, the European Union Intellectual Property Office (EUIPO) Board of Appeal ruled that ‘BREXIT’ was officially allowed to be registered as a trademark in Classes 5, 32 and 34, which includes food supplements, brewery products, cigarettes and energy drinks.

Bizarrely, the applicant behind the successful registration of the word is not a political party or some kind of satirical opportunist, but a company called Brexit Drinks Ltd, which seems to be based in Poland, and is responsible for a canned energy drink emblazoned with the Union Jack. According to its own website, ‘Brexit Energy Drink is a powerful dose of energy, concentrated in a small can. The power of Brexit Energy Drink derives from carefully selected ingredients of the highest quality. When you open the can, you release the power of taurine, caffeine and B vitamins’.

Being able to trademark one of the most frequently-used words of recent times is quite the draw for the small beverage company, but things weren’t always looking so positive for them. Initially, the EUIPO Examiner ruled against the registration of the word on the grounds that it was both ‘descriptive and offensive’. As Mondaq writes, ‘according to the Examiner, the term “BREXIT” refers to the withdrawal of the United Kingdom from the European Union and all European citizens are familiar with it. Consequently, it would be perceived as a motto for the withdrawal of the United Kingdom from the European Union, and not as an indicator of trade origin in respect of the goods applied for’. The examiner also went as far as to say that the mark would be offensive to the average European consumer, and particularly to the 48% who voted against Brexit itself.

However, EUIPO’s Board of Appeal has now reviewed the case and ruled that the trademark registration cannot be refused. It essentially concluded that a word cannot be refused registration on the grounds that it might offend a certain section of the public, and that distinctiveness of the word ‘Brexit’ being used for an energy drink could not be denied.

Inevitably, this is not the first time a company has tried to register a trademark that includes the word ‘Brexit’ — the likes of ‘Brexit law’ has been put forward as a registration in the past — but this is the first instance that has proved successful.  All previous phrases have been refused on the grounds of being offensive and/or lacking distinctiveness, but this recent decision in favour of Brexit Drinks Ltd might just cause the tide to turn. In the meantime, keep an eye out for cans of ‘Brexit’ at your nearest supermarket!

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