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What about Gibraltar?

This is our first Brexit Bulletin since December.  We know a lot of you are getting Brexit newsletters from firms like ours, all saying the same thing, (and mainly saying nothing….).  We have always tried to make our Brexit Bulletin worth reading. So, while we approached the halfway mark in the Brexit negotiations, and there was frankly little say, we decided to take a little rest.
Earlier this month, however, we attended the Marques mid-year meeting in Malaga. Malaga is in south-west Spain, quite close to Gibraltar and the local newspaper ran a story about Gibraltar and Brexit.  Gibraltar is a British overseas territory, but Spain has long claimed sovereignty over it. The EU’s draft Brexit guidelines gave Spain an effective veto over Gibraltar by stating that no deal on the EU’s future relationship with the UK would apply to Gibraltar without Spain’s agreement.  Despite Gibraltar voting 96% to remain in the EU on 23 June 2016, this interference in its affairs has caused a backlash among Gibraltarians who, in the main, want to remain British.
This got us thinking about the IP issues of Brexit on Gibraltar and the British crown dependencies of Jersey, Guernsey and the Isle of Man. We know, of course, that the UK will eventually be leaving the EU and that registered and unregistered Community Designs and EU Trade Marks will no longer have affect in the UK, but what will this mean for these territories?  
With Guernsey and the Isle of Man,  Brexit should have no effect on the protection of trade marks and designs.  Currently, in Guernsey, neither EU nor International trade marks are recognised and the only option is to apply to register a trade mark that is also registered in a country party to the Paris Convention – usually a UK trade mark. Brexit will not change this. In the Isle of Man, UK trade marks and UK designations of International trade marks automatically give protection, and,  although the Isle of Man is technically outside the EU (just to complicate matters…), EU trade marks are also recognised and protected there. Therefore, here again, rights in the Isle of Man should be unaffected by Brexit.  In both territories, the position is the same for designs. 
With Gibraltar and Jersey, however, things are different. Currently, EU trade marks give protection, but it seems unlikely they will do so after Brexit, and, although UK trade marks may be derived from them, UK trade marks only give protection in Gibraltar and Jersey if they are pro-actively registered there. Therefore, it looks as if trade mark owners wishing to retain rights in Gibraltar and Jersey will have to make sure they have UK protection and then make applications to register their UK trade mark(s) in these territories. With designs, the position in Jersey is the same as with trade marks (i.e . pro-active registration of a design already registered in the UK is required). In Gibraltar, however, UK designs automatically cover Gibraltar, so providing Community designs are converted to UK designs after Brexit, there is nothing to worry about.  Phew…..


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