The Trademarks Law Review: United Kingdom
The UK's recent withdrawal from the EU was a seismic shift and resulted in a host of changes, most notably: ending EU trademark (EUTM) protection in the UK (while maintaining equivalent rights nationally); giving the UK the right to diverge from EU law going forward (while retaining previous EU law); and changing the rules with regard to addresses for service (which must now be in the UK, Gibraltar or the Channel Islands for all new trademark applications and requests to start contentious proceedings before the UK Intellectual Property Office (UKIPO)).
By now, most EUTM rights holders will have taken advantage of the automatic creation of 'comparable' UK trademark rights (these automatically converted all existing EUTMs into UKTMs at the end of the transition period). Owners of pending EUTM applications as at 1 January 2021 had until 30 September 2021 to refile those applications with the UKIPO and take advantage of the earlier filing, priority and seniority dates.
Going forward, brand owners seeking trademark protection in the UK and EU will be required to make separate applications to the UKIPO and European Union Intellectual Property Office.
Year in review
This year has brought us two notable decisions from the Court of Appeal on (1) the validity of trade mark registrations that cover broad categories of goods and services and (2) indirect consumer confusion.
i Sky Ltd v Skykick, UK Ltd2
On 26 July 2021, the Court of Appeal handed down its judgment in the continued saga of one of the most eagerly awaited trademark cases in recent years. The focus of the appeal was on the High Court judge's assessment of bad faith.
The case concerns infringement proceedings instigated by the well-known broadcaster Sky against SkyKick, a company offering cloud-based software management services. Sky claimed trademark infringement and passing off in relation to, among others things, its use of the sign 'SkyKick'. SkyKick denied the claims and counterclaimed for a declaration that Sky's trademarks were invalid as: (1) the broad specifications covered by the registrations (including 'computer software') lacked 'clarity' and 'precision'; and (2) Sky had acted in bad faith in applying for its trademarks because, at the time of filing, Sky had not intended to use the marks for all of the goods and services covered.
The High Court referred five questions to the Court of Justice of the EU (CJEU) relating to invalidity and bad faith. Although the CJEU ultimately considered that a lack of clarity or precision in respect of goods and services could not constitute a sufficient ground for invalidating a UK or EU trademark, an application made without any intention to use the trademark in relation to the goods and services covered may constitute bad faith. Bad faith could apply if an applicant had an intention to undermine the interests of a third party or of obtaining an exclusive right for purposes other than those falling within the functions of the trademark. Further, it considered that an application could be made partly in good faith and partly in bad faith, in which case the mark would only be vulnerable to an invalidity action in respect of the goods and services for which bad faith was found.
In April 2020, the High Court, in applying the CJEU judgment, made a number of findings, including:
- As at the time of filing there was no 'foreseeable prospect' of an intention to use the SKY marks in respect of some of their registered goods and services. These were partially invalid on grounds of bad faith.
- Sky had filed the applications 'pursuant to a deliberate strategy of seeking very broad protection of the [trademarks] regardless of whether it was commercially justified' and in doing so had applied for the trademarks 'purely as a legal weapon against third parties'.
- Accordingly, Sky's trademark specifications were tainted by bad faith. As Sky had not provided suitable alternative (limiting) specification wording, the judge amended the wording accordingly.
Notwithstanding the partial invalidity of Sky's trademarks, its infringement claims were upheld.
Both parties appealed the High Court decision.
Court of Appeal
The Court of Appeal held that the judge had erred in his finding of partial invalidity and, specifically, in his assessment of bad faith. In particular:
- There was a distinction between cases such as this – where Sky did intend to use, at the time of filing or in the future, its trademarks for at least part of the broad specification of goods and services – and those cases where the purposes of the filing were exclusively dishonest.
- The CJEU determined that a mark could be filed partially in good faith and partially in bad faith, and therefore a detailed review of the relevant goods and services was required. The overall breadth and length of the specifications were not conclusive. Categories of goods or services should be considered in their own right, rather than being declared invalid because there was bad faith in relation to only some of the terms.
- Sky had an existing business in 'computer software' and an expectation of further future use. The fact it was unlikely to use the trademark in relation to every conceivable subdivision was neither a relevant nor an objective indication of bad faith.
- The judge had erred in formulating a restricted specification without giving Sky the opportunity to provide its own proposed wording.
The case is a further lightening of the effect of the High Court decision on trademark owners managing large portfolios covering broad categories of goods and services. There will still undoubtedly be an impact on trademark filings for broad terms, and caution should always be exercised when filing UK trademark applications with broad specifications, especially if these applications are made strategically rather than with a genuine intention to use the marks for those goods and services.
ii Liverpool Gin Distillery Ltd and Halewood v Sazerac Brands LLC3
On 5 August 2021, an attempt to appeal a High Court decision concerning bourbon brands was dismissed. The judgments serve as a helpful reminder of the determinative role played by the average consumer in the assessment of likelihood of confusion and detriment to distinctive character in trademark claims, particularly when looking at niche or specialised products. It also highlights the difference between direct and indirect confusion.
EAGLE RARE is a Kentucky bourbon whiskey produced by Sazerac Brands (Sazerac). Sazerac owns UKTMs and EUTMs for 'EAGLE RARE' covering alcoholic beverages, spirits, whiskey and bourbon in Class 33.
In 2019, the Halewood Group of companies (Halewood) launched 'American Eagle', a Tennessee bourbon whiskey. Sazerac brought a claim against Halewood for, among other things, trademark infringement. In addition, it sought a declaration of invalidity in respect of Halewood's AMERICAN EAGLE UK trademark application.
In a useful overview of key issues such as the average consumer and the nature of the relevant market, the High Court held that:
- Although bourbon was a mass-market drink, there was a greater degree of brand loyalty than with other spirits. Consumers were likely to stick to their chosen brand, leading to a higher degree of attentiveness. The average consumer excluded consumers at either end of the knowledge and attentiveness spectrum (i.e., those with no knowledge at all and bourbon connoisseurs).
- On that basis, direct confusion was unlikely. However, the average consumer may assume that American Eagle and EAGLE RARE were connected or related brands, particularly where it was common practice for distilleries to produce different expressions or variants of the same brand and, as such, there was a likelihood of indirect confusion.
- As a significant part of the market would be confused as to whether the two brands came from the same or economically linked undertakings, Halewood's use of American Eagle caused detriment to the distinctive character of EAGLE RARE.
Use of American Eagle was accordingly found to infringe Sazerac's EAGLE RARE trademark. Halewood's trademark was also declared invalid.
Court of Appeal
Halewood appealed the decision based on, inter alia, arguments that the judge had erred in his application of the principle of contextual assessment of the use of the sign and had been wrong to place weight on the evidence of a witness (as it was inadmissible) in his analysis of indirect confusion.
In dismissing Halewood's appeal, however, the Court of Appeal held that the trial judge had been correct to find infringement based on a likelihood of indirect confusion and rejected Halewood's allegations on contextual assessment. Further, while evidence given by a witness on the characteristics of the average consumer was inadmissible, the judge's reference had been merely illustrative.
The main sources of domestic legislation relating to trademarks are the Trade Marks Act 1994 (as amended) and the Trade Mark Rules 2008 (as amended).
UK trademark legislation is derived from EU legislation and so the equivalent EU provisions, and their predecessors (as well as the case law of the CJEU), remain relevant. Specifically, from 1 January 2021, the European Union (Withdrawal) Act 2018 (as amended by the European Union (Withdrawal Agreement) Act 2020) (the Withdrawal Agreement), retained EU-derived domestic legislation and direct EU legislation as 'retained EU law' (as saved or modified, or both, during the 'Brexit' transition period). However, following the UK's withdrawal from the EU, UK courts do have the power to diverge from EU law.
Other significant treaties and international commitments include:
- the Madrid Agreement and Protocol concerning the International Registration of Marks;
- the Paris Convention for the Protection of Industrial Property;
- the Nice Agreement regarding the classification of goods and services;
- the Vienna Agreement, regarding the classification of figurative elements of trademarks;
- the TRIPS Agreement; and
- the Singapore Treaty on the Law of Trademarks.
The UKIPO is responsible for developing the legislative and policy framework underpinning the UK trademark system. It is an executive agency sponsored by the Department for Business, Energy and Industrial Strategy.
Companies House and the Company Names Tribunal (administered by the UKIPO) are responsible for company name registrations and complaints.
Nominet is the official registry for .uk domain names and handles related complaints.
iii Substantive law
Registered trademarks, collective and certification marks
The Trade Marks Act 1994 (the Act) forms the basis for the protection of UK trademarks, collective marks and certification marks. Registered trademark protection is obtained by registering a mark (including a collective or certification mark) as a UK trademark with the UKIPO or by obtaining an international trademark designating the UK through World Intellectual Property Organization (WIPO) in accordance with the Madrid Agreement and Protocol.
The UK law of 'passing off' protects unregistered trademarks. Provision is also made under the Act for the protection of well-known trademarks (i.e., those that are neither registered in the UK nor owned by entities with a UK presence).
Company names and other commercial indicia
Trade names, business names and company names do not in themselves confer legal protection in the UK, although they may qualify for protection as unregistered rights (i.e., under the law of passing off or the protection afforded to well-known marks).
Companies House offers some protection for company names considered the same as or sufficiently similar to a name in relation to which another party has goodwill.
Obtaining a domain name does not in itself confer legal protection. However, domain registrants may be able to satisfy the requirements of passing off or the protection of well-known marks.
Nominet, the .uk domain registry, prevents the registration of identical domain names and handles complaints relating to similar registrations under its Dispute Resolution Service.
The UK geographical indications (GI) scheme protects registered products with qualities or characteristics attributable to a specific geographical origin. Applications are made to the Department for Environment, Food and Rural Affairs. Producers can make and sell products under the GI provided these are verified and follow the specifications for the product. However, GIs may also be registered as collective or certification marks with the UKIPO or be protected by the law of passing off.
Registration of marks
UK registered trademark protection can be obtained through two different routes. Applicants can apply through WIPO for an international registration designating the UK. Alternatively, applicants can register a trademark with the UKIPO by filing Form TM3.
The official fees to file a single UK trademark application are £170 for the first class of goods and services, then £50 for each additional class. Information required for registration includes:
- the applicant's name and address;
- an address for service in the UK, Gibraltar or Channel Islands (not the EEA) (an important requirement post-Brexit);
- a representation of the mark;
- a list of goods and services for which the mark is to be registered; and
- a statement of intention to use the mark (another important UK-specific requirement).
After publication in the Trade Marks Journal, an extendable two-month deadline allows third parties to oppose the mark, after which the mark will proceed to registration. Typically, UK applications with no objections or oppositions will achieve registration in four to six months from filing. Once registered, trademark rights will date back to the registration's filing date.
UK registrations are renewable every 10 years (for a fee) and can last indefinitely, with the condition of genuine use.
The UKIPO will examine the application against the requirements of inherent registrability ('absolute grounds').
Under UK law, a trademark is 'any sign' that serves to distinguish the goods of one economic undertaking from those of another. The sign must be presented in a clear, precise, self-contained, easily accessible, intelligible, durable way and in an objective manner, so that competent authorities and the public can determine with clarity and precision the subject matter of the protection that it affords to its proprietor.
Marks will not be accepted if they are (among other things):
- devoid of distinctive character (unless it can be shown that the mark has acquired distinctiveness through use);
- descriptive or have become customary;
- comprise a shape or other characteristic that results from the nature of the goods or is necessary to obtain a technical result or that gives substantial value to the goods;
- contrary to public policy;
- deceptive; or
- applied for in bad faith.
ii Prior rights
The UKIPO will not of its own accord object to an application based on a conflict with earlier trademarks. However, it will conduct a search for conflicting UK and international trademark applications and registrations considered 'similar'. Positive hits from this search will not mean the application is refused. However, earlier right holders will be notified and given the opportunity to act if they consider there is a conflict. Objections under these grounds are known as 'relative grounds' for refusal.
Other earlier rights may also be relied upon to oppose an application, including copyright, UK registered and unregistered design rights and other common law rights (including unregistered rights, which could form the basis of a passing off action).
iii Inter partes proceedings
Once a trademark application is accepted and published in the Trade Marks Journal, third parties can oppose the registration (either the mark in its entirety or just in respect of some of the goods and services) on any of the 'absolute' or 'relative' grounds outlined above. There are also revocation and invalidation procedures that make it possible for third parties to challenge a trademark after its grant.
Actions for revocation and invalidity can be brought before the High Court in England, Wales and Northern Ireland (the High Court), the Intellectual Property Enterprise Court (IPEC), some county courts or the UKIPO.
As a result of Brexit, pursuant to the Withdrawal Agreement, if an EUTM is declared invalid, is revoked or is cancelled in the EU as the result of an administrative or judicial procedure that was ongoing as at 31 December 2020, the corresponding UKTM will also be declared invalid, revoked or cancelled unless the grounds for that determination would not apply in relation to the comparable UK right.
Oppositions are commenced by the filing of Form TM7. The filing fee is between £100 and £200, depending on the grounds relied upon (and how many of them).
If earlier registered trademark rights are relied upon that are more than five years old, it is necessary to confirm which goods and services the earlier trademark has been used for.
Following Brexit, EU rights can no longer support a challenge to UKTM registrations. However, newly created 'comparable' UK trademark rights can be.
The applicant is given two months from the service date of the TM7 to file a defence and counterstatement on Form TM8.
The process is similar for invalidation actions, which enables third parties to challenge a trademark after its grant based on relative or absolute grounds. Again, an application may seek to invalidate the entire registration or just apply in respect of some of the goods and services.
While any person can apply to have a UKTM declared invalid on absolute grounds, only the proprietor of an earlier mark or right can bring an application for invalidity based on relative grounds.
Revocation actions, in contrast, can be brought by any person. Trademarks can be revoked for lack of genuine use (within five years following registration), because the mark has become generic or because its use would be liable to mislead the public (e.g., in relation to the nature quality or geographical origin of the goods). These actions can relate to the trademark registration in its entirety, or just some of the goods and services in the specification.
Following Brexit, use of an EUTM in the UK will not qualify as use in the EU for the purpose of maintaining the trademark (and vice versa). However, use before the end of the transition period will constitute 'use' if it relates to the relevant period for which use has to be shown.
A UKIPO decision can be appealed to either the 'appointed person' (an independent senior IP lawyer appointed by the Ministry of Justice) or the High Court and the Court of Session in Scotland. The appeal will review the UKIPO hearing officer's decision for obvious errors, rather than rehear the case. Decisions by the High Court may be appealed further to appellate courts, whereas decisions made by the appointed person are final.
In the UK, trademark disputes are dealt with by the High Court (in London this is the Business and Property Courts (BPC), which brings together the work of the Chancery Division, and the specialist courts of the Queen's Bench Division), IPEC or a chancery district registry of a county court. The complexity of the claim, its overall value and whether any interim relief is sought all influence the decision for the appropriate forum for the dispute.
Criminal proceedings are handled by the magistrates' court or the Crown Court.
The IPEC is a specialist court within the High Court. Litigating matters in the IPEC is speedier and less costly than using the High Court. The IPEC has two 'tracks' (i.e., routes a case can follow): the 'small claims track' and the 'multi-track'.
The small claims track deals with less complex claims where the damages sought are under £10,000. The procedure is shorter and less formal than that under the multi-track, with correspondingly lower court fees. Importantly, the losing party will not be required to pay the winning party's costs (or a very small proportion of them at best).
The multi-track deals with cases of higher value and complexity. Litigants can claim damages of up to £500,000 (although this cap can be waived by agreement), and the losing party may be required to pay the other side's costs. Importantly, caps for recoverable costs are strictly set for each stage of the proceedings and must not exceed £50,000 (with limited exceptions).
The High Court is the conventional forum for IP disputes of appropriate complexity and value. There is no cost-capping regime. However, the court must approve detailed costs budgets. The process, because it is more thorough, is slower and more expensive than in the IPEC – particularly at the disclosure and evidence stages.
The Civil Procedure Rules (CPR), and in particular Part 63 (which relates to IP claims), set out the detailed procedure for trademark litigation in the courts of England and Wales.
The Shorter Trials Scheme
The Shoter Trials Scheme (STS) started as a pilot but became a permanent feature of the BPC in 2018. It aims to achieve short and earlier trials for business related litigation, at a reasonable and proportionate cost. The STS is aimed at cases where the trial length is not expected to exceed four days (including reading time) and where limited disclosure and oral evidence are appropriate. Although the focus on timing is key, so too is maintaining the quality of decisions.
Disputes may also be resolved through arbitration and other alternative dispute resolution (ADR) procedures.
ii Pre-action conduct
The CPR govern procedure in the IPEC, the High Court and the appellate courts. CPR Part 63 and its corresponding practice direction (PD) govern the procedure relating to trademark disputes. Various court guides are also applicable (such as the IPEC Guide) and complement the CPR provisions.
Parties are encouraged, before issuing proceedings, to exchange information to identify, narrow and try to settle the issues between them. The pre-action procedure encourages parties to resolve the dispute out of court or, at the very least, narrow the issues. There can be adverse cost consequences for refusing to do so.
Parties litigating in the UK should also be aware of the unjustified threats provisions contained in the Act, which provide a statutory action against groundless threats of trademark infringement.
The CPR and the courts encourage settlement at all stages of the proceedings. Although the court cannot compel parties do so, it may impose costs penalties on a party who unreasonably refuses to engage in ADR.
iii Causes of action
Using a registered trademark in the course of trade without the proprietor's consent in any of the following circumstances may constitute an infringement:
- Double identity: when the sign used is identical to the registered trademark and is used in relation to goods or services that are identical to those for which the trademark is registered.
- Likelihood of confusion: when the sign used is either: (1) identical to the registered trademark, and used in relation to goods or services that are similar to those for which the trademark is registered; or (2) is similar to the registered trademark, and used in relation to goods or services that are identical or similar to those for which the trademark is registered, provided, in each case, there exists a likelihood of confusion on the part of the public, which includes a likelihood of association. The likelihood of confusion must be appreciated globally, taking into account all factors relevant to the circumstances of the case, and is assessed through the eyes of the average consumer.
- Marks with a reputation: when the sign used by the infringer is identical or similar to a registered trademark that has a reputation in the UK, and the use of the sign (without due cause) takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trademark.
Principally, the trademark proprietor will bring the action, although other parties may also bring proceedings (including an exclusive licensee).
It is common for allegations of trademark infringement and passing off to be raised together and both causes of action can be brought simultaneously. Passing off occurs when one party implies a connection to another, such that it is likely to deceive the public into the mistaken belief that the two parties are in some way related and such a misrepresentation is liable to cause damage.
The onus is on the claimant to provide sufficient evidence to demonstrate that it has protectable goodwill. Passing off is often evidentially difficult to prove.
iv Conduct of proceedings
Statements of case
Proceedings are started by issuing a claim form at court and paying the required court fee. In the High Court, fees can range anywhere up to £10,000, depending on the value of the claim and the remedies sought.
Unless the claim is admitted, a defendant to a claim must file a defence. The period in which to do so depends on the court in which the claim is brought, but ranges from 14 days to 42 days. The defendant to trademark infringement proceedings may wish to file its own counterclaim (e.g., for the revocation or invalidity of the trademark). The claimant will then have an opportunity to reply and provide a defence to the counterclaim.
Case management conference
Once the defence (and reply, if applicable) is filed, it is usual for a case management conference to be arranged. This is a procedural hearing where the court will give directions for the future conduct of the case, including: (1) issues to be tried; (2) the parties' disclosure obligations; (3) obligations relating to evidence (including witness and expert evidence); and (4) when the trial might be expected to take place, and for how long.
Disclosure can be time-consuming and costly. Disclosure in the IPEC is usually limited to specific disclosure of documents relating to particular issues. A list of disclosure documents is served on the defendant, who is entitled to inspect these (unless privilege or confidentiality is asserted). From the point where litigation is contemplated, the parties are under a duty to preserve documents that may need to be disclosed (i.e., documents that either support or undermine any party's case).
In January 2019, Practice Direction 51U introduced a new pilot scheme for disclosure in the BPC. Unless ordered otherwise, the pilot does not apply to proceedings in the IPEC. Significantly, there is no longer an automatic entitlement to search-based standard disclosure. 'Initial disclosure', which is provided with the parties' statements of case, will generally be the first disclosure stage, followed by an agreed form of 'extended disclosure'.
Evidence in the form of witness statements (and less commonly in trademark claims, expert evidence) usually follows the disclosure process.
The rules on witness statement have recently been reviewed. Trial witness statements in new or existing proceedings before the BPC on or after 6 April 2021 need to comply with the new rules in Practice Direction 57AC. The rules codify best practice (in various court guides and CPRs) and are concerned with preventing the 'over-lawyering' of evidence in the preparation of witness statements. Importantly, trial witness statements must be prepared in accordance with a 'statement of best practice' and both witnesses and their legal representatives endorse the trial statement with a certificate or confirmation of compliance in a prescribed form.
The general rule regarding costs in UK litigation is that, if your claim succeeds, you will be entitled to recover a proportion of your costs from the defendant. On the other hand, if the claim fails, you are likely to be required to pay the defendant's costs. However, the court has discretion to make a different costs order. The court will take into account factors such as the conduct of the parties and offers to settle (including CPR 'Part 36' offers, which are specific offers with significant costs and interest risks attached to them).
The overall process usually takes a minimum of 18 months, with proceedings in the IPEC usually taking around 12 months.
Following Brexit, proceedings commenced in a UK court will no longer have any pan-EU effect. Similarly, proceedings commenced in the EU will have no effect in the UK.
The Court of Appeal hears appeals from the High Court and IPEC. Court of Appeal decisions are appealable to the Supreme Court. The procedure is set out in CPR Part 52 (appeals) and Part 63 (IP claims).
The remedies available from claims issued in the IPEC and High Court include:
- preliminary injunctions;
- final injunctions;
- delivery up or destruction of infringing goods;
- orders compelling changes of company or domain names;
- orders for the payment of damages or an account of profits;
- orders for the payment of costs (usually around 60 per cent to 70 per cent of actual costs incurred); and
- orders requiring the dissemination of a judgment.
The list is non-exhaustive, and the courts have a wide inherent jurisdiction in granting remedies to a successful claimant.
Other enforcement proceedings
i Company names
The Company Names Tribunal deals with complaints made under the Companies Act 2006, which provides a remedy for parties aggrieved by the registration of a company name. This route is limited in its application (and aimed primarily at circumstances where a company name is registered for the primary purpose of preventing someone else with legitimate interest from registering it, or demanding payment from them to release it), but it can provide a useful, and inexpensive, first port of call.
ii Domain names
Nominet provides a dispute resolution service for the resolution of .uk domain disputes involving 'abusive registrations'. Abusive registrations are those registered or acquired in a manner that, at the time of registration or acquisition, took unfair advantage of, or were unfairly detrimental to, the rights holder or are subsequently used in such a way.
iii Criminal proceedings
The Act also includes separate provisions on criminal offences, which are enforced by trading standards authorities (although private prosecution is possible). Penalties upon conviction include fines as well as custodial sentences.
Criminal sanctions can apply to certain unauthorised uses of trademarks (e.g., counterfeiting), as can general principles relating to fraud and false representations. It is also a criminal offence to falsely represent that a mark is a registered trademark (by either the word 'registered' or the ® symbol) when that is not the case.
iv Customs and border enforcement
A trademark holder can give notice to HM Revenue & Customs to intercept and seize the arrival of infringing goods to the UK by, for example, an 'application for action' (AFA) that requests that Border Force detain goods suspected of trademark infringement. AFAs are free, although trademark owners are liable for costs incurred from the seizure, including the handling, transport, storage and destruction of the goods.
Previously, AFAs covering all or specific EU Member States based on EUTMs could be filed through a single Member State, with the UK being a popular choice. Following Brexit, trademark owners will need to make new UK-specific AFAs to protect their UK rights (and vice versa for EUTMs).
Now that the UK courts are no longer able to refer questions surrounding the interpretation of retained EU trademark law to the CJEU (and are no longer required to follow its judgments), it remains to be seen what the UK will make of its new-found judicial autonomy. While similar proposals involving the High Court were rejected as risking legal uncertainty and increased litigation, the Court of Appeal was given the power to depart from retained EU case law in line with the government's stated policy aim of 'enabling retained EU case-law to evolve more quickly'. It will be interesting to see the extent to which post-Brexit case law is applied in the UK, particularly given some of the judicial criticisms made of the CJEU's interpretation in certain areas of trademark law.
Another important issue that is worth keeping an eye on is the impact of Brexit on the principle of exhaustion. At present, the UK is unilaterally participating in the EEA regional exhaustion regime, meaning that goods first marketed in the EEA can be parallel imported into the UK without the rights holder's permission. In June 2021, the UK government opened a consultation on the future regime for UK exhaustion. The consultation, which closed on 31 August 2021, requested input from a range of stakeholders on four proposed exhaustion regimes: (1) a continuation of the unilateral exhaustion regime; (2) an international exhaustion regime; (3) a mixed exhaustion regime; and (4) a national regime (although the latter appears to have been ruled out from the outset as inconsistent with the Northern Ireland Protocol). A decision to adopt any regime other than the current unilateral regime will require businesses and organisations to make considerable changes to their supply chains (and other aspects of their business models) to adapt and manage the impact of such a change.