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

Prospective

Regulation 6

[X1 SCHEDULE 4 U.K. Commission Delegated Regulation (EU) 2019/33: 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 1b

“Article 1b U.K. Definitions: types of traditional term

In Article 32a and Annex 7A any reference to:

(a) ‘a type 1 traditional term’ means a traditional term of the type described in column 2 of row 1 of the Types Table;

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

(c) ‘a type 2B traditional term’ means a traditional term 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;

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

(e) ‘a type 3B traditional term’ means a traditional term of the type described in column 2 of row 3 of the Types Table to which the provisions in column 4 of that row apply;

(f) ‘a type 4A traditional term’ means a traditional term of the type described in column 2 of row 4 of the Types Table to which paragraph 1 or 2 in column 3 of row 3 of that table applies;

(g) ‘a type 4B traditional term’ means a traditional term of the type described in column 2 of row 4 of the Types Table to which the provisions in column 4 of row 3 of that table apply;

(h) ‘a type 5A traditional term’ means a traditional term of the type described in column 2 of row 5 of the Types Table to which paragraph 1 or 2 in column 3 of row 3 of that table applies;

(i) ‘a type 5B traditional term’ means a traditional term of the type described in column 2 of row 5 of the Types Table to which the provisions in column 4 of row 3 of that table apply;

(j) ‘a type 6A traditional term’ means a traditional term of the type described in column 2 of row 6 of the Types Table to which paragraph 1 or 2 in column 3 of row 3 of that table applies;

(k) ‘a type 6B traditional term’ means a traditional term of the type described in column 2 of row 6 of the Types Table to which the provisions in column 4 of row 3 of that table apply.”

PART 2 U.K. New Articles 32a and 32b

“Article 32a U.K. Transitional provision: 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 not respect the definition in Article 112 of Regulation (EU) No 1308/2013 and the conditions of use in Article 113 of that Regulation in relation to a category A traditional term.

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 not respect the definition in Article 112 of Regulation (EU) No 1308/2013 and conditions of use in Article 113 of that Regulation in relation to a category B traditional term, 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 2B traditional term:

(aa) the international agreement referred to in paragraph (c) of column 2 of row 2 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 any other category B traditional term:

(aa) the Secretary of State publishes an Article 115(2) approval notice relating to the traditional term, and

(bb) the Article 115(2) 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 32b(1) and modified by Article 32b(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 does not, or will not, if used, respect the definition in Article 112 of Regulation (EU) No 1308/2013 and conditions of use in Article 113 of that Regulation in relation to the category B traditional term, and

(c) in the case of a type 3B, 4B, 5B or 6B traditional term, the Secretary of State publishes an Article 115(2) approval notice relating to the traditional term 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 traditional term 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 traditional term.

5.   As regards paragraph 1 or 2, a column 5 date does not apply in relation to a type 2A, 3A or 4A traditional term where the EUIA referred to in paragraph (b) in column 2 of the row of the Types Table relating to the traditional term 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 traditional term

6.   As regards paragraph 3, a column 5 date does not apply in relation to a type 2B, 3B or 4B traditional term where the EUIA referred to in paragraph (b) in column 2 of the row of the Types Table relating to the traditional term 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 traditional term.

7.   Where a traditional term falls within the definition of more than one type of traditional term in Article 1b, the column 5 date to be taken into account for the purpose of paragraph 4 is the earliest of the column 5 dates for the relevant types of traditional term.

8.   A trade mark that could be used under Article 32(3) of EU Regulation 2019/33 M1 , or renewed pursuant to that provision, in the United Kingdom immediately before exit day may continue to be used and renewed on and after exit day:

(a) notwithstanding that the use of the trade mark would not respect the definition in Article 112 of Regulation (EU) No 1308/2013 and conditions of use in Article 113 of that Regulation in relation to a traditional term 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.

9.   Where paragraph 8 applies to the use or renewal of a trade mark, this does not affect the use of:

(a) an established traditional term (within the meaning of Article 39(2)) entered on the United Kingdom's Traditional Terms Register pursuant to Article 39(1);

(b) a traditional term entered on the United Kingdom's Traditional Terms Register by the Secretary of State following a decision by the Secretary of State to approve an application to protect the traditional term submitted under Article 21 of Implementing Regulation (EU) 2019/34;

(c) a traditional term entered on the United Kingdom's Traditional Terms Register by the Secretary of State under Article 25(3) of Implementing Regulation (EU) 2019/34.

10.   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 traditional term’ means a type 1, 2A, 3A, 4A, 5A or 6A traditional term;

(c) ‘a category B traditional term’ means a type 2B, 3B, 4B, 5B or 6B traditional term;

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

(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) ‘EU Regulation 2019/33’ means Commission Delegated Regulation (EU) 2019/33 supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council as regards applications for protection of designations of origin, geographical indications and traditional terms in the wine sector, the objection procedure, restrictions of use, amendments to product specifications, cancellation of protection, and labelling and presentation as it had effect before exit day;

(g) ‘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;

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

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

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

(k) ‘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;

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

11.   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 32b U.K. Application and modification of trade mark provisions

1.   For the purpose of Article 32a, 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 32a(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 32b(1) of Commission Delegated Regulation (EU) 2019/33 supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council as regards applications for protection of designations of origin, geographical indications and traditional terms in the wine sector, the objection procedure, restrictions of use, amendments to product specifications, cancellation of protection, and labelling and presentation,’;

(ii) in subsection (5), for ‘grounds of invalidity’ there were substituted ‘ground for invalidity specified in Article 32a(3) of Commission Delegated Regulation (EU) 2019/33 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 32a(3) of Commission Delegated Regulation (EU) 2019/33’;

(ii) the second paragraph were omitted;

(d) section 77(1) applies as if, at the end there were inserted ‘as applied by Article 32b(1) of Commission Delegated Regulation (EU) 2019/33’.

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 32a(3);

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

Marginal Citations

M1 OJ No. L 9, 11.1.2019, p. 2.

PART 3 U.K. New Annex 7A

“ANNEX 7A U.K. Types of traditional term to which Article 32a applies

PART A U.K. Types of traditional term (the Types Table)

Column 1Row No.	Column 2The name, or a description, of the traditional term	Column 3Type A provisions	Column 4Type B provisions	Column 5The specified date
1.	Quality sparkling wine Quality wine Regional sparkling wine Regional wine	Not applicable	Not applicable	30th December 2011
2.	A traditional term that: (a) is used in relation to a wine sector product produced 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 that enters into force during the relevant period.	1. A traditional term that is on the United Kingdom's Traditional Terms Register when the paragraph 1 trade mark application is accepted and is entered on that register pursuant to Article 39. 2. A traditional term that is not on the United Kingdom's Traditional Terms 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 traditional term that is not on the United Kingdom's Traditional Terms 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 traditional term in relation to the EUIA referred to in point (b) of column 2.
3.	A traditional term that: (a) is used in relation to a wine sector product produced 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 traditional term that is on the United Kingdom's Traditional Terms 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 traditional term submitted to the Secretary of State under Article 21 of Implementing Regulation (EU) 2019/34 during the relevant period. 2. A traditional term: (a) that is not on the United Kingdom's Traditional Terms Register when the paragraph 1 trade mark application is accepted, (b) for which an application to register the traditional term is submitted to the Secretary of State under Article 21 of Implementing Regulation (EU) 2019/34 during the relevant period, and (c) for which an Article 115(2) approval notice relating to the application is published before the paragraph 1 trade mark application is accepted.	A traditional term: (a) that is not on the United Kingdom's Traditional Terms Register when the relevant trade mark application is accepted, and (b) for which an application to register the traditional term is submitted to the Secretary of State under Article 21 of Implementing Regulation (EU) 2019/34 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 115(2) notice relating to the application to register the traditional term is not published before the relevant trade mark application is accepted.	The relevant EUIA-based date that applies to the traditional term in relation to the EUIA referred to in point (b) of column 2.
4.	A traditional term: (a) that is used in relation to a wine sector product produced in a third country, (b) for which an assessment relating to the protection of the traditional term was being carried out, or a request for protection, or an application for assessment for protection, was submitted, before exit day in respect of the traditional term under an EUIA, and (c) for which no decision was made pursuant to the EUIA before exit day as to whether the traditional term should be protected in the European Union.	See the entry in row 3 of this column.	See the entry in row 3 of this column.	The relevant EUIA-based date that applies to the traditional term in relation to the EUIA referred to in point (b) of column 2.
5.	A traditional term that: (a) is used in relation to a wine sector product produced in a third country, and (b) was on the European Commission's Traditional Terms Register M2 immediately before exit day.	See the entry in row 3 of this column.	See the entry in row 3 of this column.	1. In relation to a traditional term listed in Annex 3 to Commission Regulation (EC) No 753/2002 laying down certain rules for applying Council Regulation (EC) No 1493/1999 as regards the description, designation, presentation and protection of certain wine sector products M3 when that Regulation was published in the Official Journal of the European Union, 4th May 2002. 2. In relation to a traditional term added to Annex 3 to Regulation (EC) No 753/2002 after 4th May 2002, the date on and from which the addition of the traditional term to that Annex applied. 3. In any other case, the date on which the application that resulted in the first registration of the traditional term was submitted to the European Commission under the relevant pre-exit EU legislation.
6.	A traditional term: (a) that is used in relation to a wine sector product produced in a third country, and (b) for which an application to register the traditional term was submitted to the European Commission under Article 29 of Regulation 607/2009, or Article 21 of EU Regulation 2019/34, before exit day that was neither refused nor resulted in traditional term being added to the European Commission's Traditional Terms Register before exit day.	See the entry in row 3 of this column.	See the entry in row 3 of this column.	The date on which the application referred to in point (b) of column 2 was submitted to the European Commission under the relevant pre-exit EU legislation.

1.   In the table in this Part:

(a) ‘an Article 115(2) notice’ means a notice published by the Secretary of State under the second subparagraph of Article 115(2) of Regulation (EU) No 1308/2013;

(b) ‘the European Commission's Traditional Terms Register’ means the register maintained by the European Commission under Article 25 of EU Regulation 2019/34;

(c) ‘EU Regulation 2019/34’ means Commission Implementing Regulation (EU) 2019/34 laying down rules for the application of Regulation (EU) No 1308/2013 of the European Parliament and of the Council as regards applications for protection of designations of origin, geographical indications and traditional terms in the wine sector, the objection procedure, amendments to product specifications, the register of protected names, cancellation of protection and use of symbols, and of Regulation (EU) No 1306/2013 of the European Parliament and of the Council as regards an appropriate system of checks as it had effect before exit day;

(d) ‘the paragraph 1 trade mark application’ means the application to register a trade mark referred to in Article 32a(1);

(e) ‘Regulation 607/2009’ means Commission Regulation (EC) No 607/2009 laying down certain detailed rules for the implementation of Council Regulation (EC) No 479/2008 as regards protected designations of origin and geographical indications, traditional terms, labelling and presentation of certain wine sector products;

(f) ‘the relevant pre-exit legislation’ means:

(i) in the case of an application to register a traditional term submitted to the European Commission under Regulation 607/2009, Article 29 of that Regulation;

(ii) in the case of an application to register a traditional term submitted to the European Commission under EU Regulation 2019/34, Article 21 of that Regulation;

(g) ‘the relevant trade mark application’ means the trade mark application referred to in Article 32a(2) or (3)(a), as relevant;

(h) ‘wine sector product’ means a product referred to in point 1, 3 to 6, 8, 9, 11, 15 or 16 of Part 2 of Annex 7 to Regulation (EC) No 1308/2013;

(i) ‘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, or paragraph 5 or 6, as relevant to the traditional term.

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 traditional term contained priority provisions that applied to the traditional term, the relevant EUIA-based date is the priority date provided for in the EUIA that applied to that traditional term.

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

(a) in a case where the traditional term 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 traditional term 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 traditional term 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 traditional term 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 traditional term 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.   In a case of a type 4 traditional term to which paragraph 3 does not apply and for which a request, or application, for protection or assessment (however described) was submitted before exit day in accordance with provisions in the EUIA, the relevant EUIA-based date is the date the request, or application, for protection or assessment was submitted in accordance with the EUIA.

6.   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 traditional terms 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 traditional term protected in the European Union immediately before exit day pursuant to an EUIA, means that the provisions in the EUIA providing for the traditional term 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 traditional term or require an assessment to be carried out under the EUIA in relation to the traditional term.”]

Marginal Citations

M2 The European Commission's register of traditional terms protected in the European Union (part of the E-Bacchus database) is available electronically from

https://ec.europa.eu/agriculture/markets/wine/e-bacchus/index.cfm?event=resultsPTradTerms&language=EN

. A hard copy of the register of traditional terms 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.

M3 OJ No. L 118, 4.5.2002, p. 1, repealed by Commission Regulation (EC) No 607/2009 (OJ No. L 193, 24.7.2009, p. 60).