Last 6 September, the European Commission released its position paper on the treatment of intellectual property rights after the United Kingdom completes its exit from the European Union.
This concise text provides a high level perspective on the targeted treatment of IP in the final withdrawal agreement. As its first principle, it states that the final agreement should ensure that “the holder of any intellectual property right having unitary character within the Union and granted before the withdrawal date should, after that date, be recognised as the holder of an enforceable intellectual property right in relation to the United Kingdom territory comparable to the right provided by Union law – if need be on the basis of specific domestic legislation to be introduced”.
If this were finally to be implemented, it would mean that holders of existing European trademarks would maintain protection in the UK.
The document adds that the implementation of this principle should also include the determination of renewal dates, the respect of priority and seniority principles, and “the adaptation of 'genuine use' requirements and 'reputation' rules to the specific situation under consideration”. On the other hand, it states that the recognition of a trademark in the United Kingdom should not be refused on the ground that the equivalent EUTM had not been put into genuine use in the territory of the UK before the withdrawal date.
Regarding GIs, protected designations of origin and other protected terms in relation to agricultural products protected under EU law before the withdrawal date, the paper states that the principle of unitary character would “imply that the United Kingdom puts in place, as of the withdrawal date, the necessary domestic legislation providing for their continued protection. Such protection should be comparable to that provided by Union law”.
However, this is a document that represents the vision of only one of two negotiating parties. The UK has yet to provide its own position and the final stituation could be very different.