Brexit and its effect on intellectual property rights

29.11.2016


The UK voted to leave the European Union this past 23 June (also known as "Brexit").  This decision will have an impact on various fields, including Intellectual Property, due to the fact that it has been governed by a myriad amount of EU Regulations and Directives.

The official exit date of the UK from the EU will not be before 2018.  Until then the UK will have to go through a negotiation period in which laws will be amended and negotiations regarding new international agreements will take place.  Thus, the implications of Brexit are still unclear and will not be determined until international agreements begin to take place.

The key legal issues for IPRs resulting from this vote in favour of "Brexit" are mainly linked to the fact that the IPRs in the UK are currently interrelated with EU legislation and case law:

Trade marks

Brexit will lead to the UK no longer being an EU member state and thus the European Union Trade mark (EUTM) will no longer provide protection in the UK.  Although it is unclear what arrangements will be taken to resolve this situation, there are a series of possibilities that could be adopted in order to avoid EUTM right owners from losing protection within the UK.  These possibilities include a bilateral agreement between the UK and the EU where EUTMs will continue to have effect in the UK as well as unilateral agreements by the UK. 

Designs

Registered Community Designs (RCDs) are affected in a similar manner as the EUTMs. However, specific issues have arisen regarding designs such as the fact that UK unregistered designs rights do not contain surface decoration within their scope of protection. Therefore, Brexit will entail a gap in protection for UK designers that have relied on Community unregistered design rights to protect the surface decoration in their designs.

Copyright

Fortunately for Copyright, this IPR will most likely to be the least affected area of intellectual property law due to the fact that it is a territorial right and there is no registration regime in the UK or throughout the EU. Moreover, many copyright principles are protected in treaties that go far beyond the EU; and where EU directives have been implemented, the principles have been adopted through UK legislation which we would expect to remain unchanged.

However, Brexit implies that the UK is no longer bound to implement future directives or follow decisions of the Court of Justice of the European Union (CJEU). Thus, contrary to the unified EU attempt to harmonize this field, it is highly probable that discrepancy may increase.

Patents

Similar to Copyright, due to the fact that the patent regime has mainly been determined by national law and international treaties and not EU rules, the impact on substantive patent law will most likely be small. 

For example, Brexit will not affect the European Patent Convention, the European Patent Office's function of carrying out the registration procedure of classic European patent applications nor currently existing patents and patent applications.

Nevertheless, the Unitary Patent as well as the Unitary patent Court will suffer consequences. The Unified Patent Court Agreement (UPCA) was going to enter into force later this year. However, Article 89 UPCA requires ratification by the UK (as well as France, Germany and a total of ten other Contracting States), before it can enter into force.

If the UK Government decides not to ratify the UPCA in light of the Brexit decision, can the UPC still proceed without the UK?

This question is one of many which prove that there currently is no certainty about what form Brexit will take.

 

Written by: UAIPIT Team

Image: https://pixabay.com/en/brexit-european-union-eu-1477615/

Source: http://www.cipa.org.uk/policy-and-news/briefing-papers/the-impact-of-brexit-on-intellectual-property/


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