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BVI Trademarks affected by new UK Legislation

The Trade Marks (Relative Grounds) Order 2007, which came into force in the United Kingdom on October 1, 2007, abolished the examination of relative grounds for refusal of an application to register a trademark. Some BVI trademarks are affected.

There exist two trademark regimes in the British Virgin Islands, on of it being the Registration of United Kingdom Trade Marks Act (Cap. 157). Any registered proprietor of a United Kingdom trademark is accordingly allowed to apply for its registration in the British Virgin Islands. The same privileges and rights in the use of the United Kingdom trademark in respect of the goods entered in the BVI register would be conferred on the registered proprietor as in the UK, mutatis mutandis, for as long as the registration in the UK remains in force in respect of the goods for which the trademark is registered in the British Virgin Islands.

When relying on a prior United Kingdom registration to obtain registration in the British Virgin Islands, the BVI registration is automatic, as the BVI Registrar considers that examination of the application has taken place in the United Kingdom. The Registrar has no power to independently examine any application based on a prior UK registration or to refuse such application based on any absolute or relative ground.

With the new United Kingdom law stating that no relative grounds for refusal will be raised by the United Kingdom Registrar, it is possible, as in the United Kingdom, for identical and confusingly similar trademarks to coexist on the BVI register. A specific trademark watch is accordingly recommended.