The government has recently published a series of impact notices setting out the consequences of a no deal Brexit in various areas. One of the areas covered is intellectual property rights.
A no deal Brexit means the UK leaving the EU without a withdrawal agreement.
Many businesses in the UK will hold European-derived intellectual property rights, which may include European trademarks, European registered or unregistered design rights and some copyright breach protections.
There is also a proposed unitary patent (UPC) which will cover EU member states with a single patent. The UPC has not yet come into force but UK businesses may have been looking forward having a single application to protect inventions across the EU.
If there is a withdrawal agreement, then one of the terms which has been agreed in principle is that there would be a transition period of 21 months during which the status quo would be maintained.
Accordingly, if there is a withdrawal agreement with a transition period, there will be no substantial change to intellectual property rights on the 29th of March 2019. The rights will continue to operate as previously pending new arrangements being put in place.
It is not clear what those new arrangements would be, but it is possible that the UK would continue to participate in current arrangements.
However, if there is no withdrawal agreement, the transition period does not come into force and the UK abruptly ceases to be a member of the EU on 29 March 2019 without any transitional arrangements. This does impact UK businesses with European rights in the following ways.
Holders of European trademarks which currently cover the whole of the EU would continue to hold their EU trademarks, but those trademarks would no longer apply in the UK.
The UK Government has made it very clear that they will replicate the European mark with an equivalent UK national mark from the date of departure.
A business or organisation which holds a European trademark would, as from the 30th of March 2019, hold two trademarks, one national UK mark and one EU mark covering the remaining 27 EU member states. When the mark is due for renewal, both marks would need to be renewed to maintain coverage.
Similar arrangements will apply for registered designs and the UK government has committed to replicate European registered design protection in the UK form the date of withdrawal.
One point to note in relation to registered designs and trademarks, is that if businesses wish to be represented by a trademark attorney or law firm, they will need to use a firm established within the EU.
Businesses can still apply for registered designs and trademarks themselves, even if not established in an EU member state but if any proceedings arise, they may need to appoint a representative within the EU.
There are a number of geographic indications from the UK which are currently protected by EU law.
These include Stilton, Melton Mowbray Pork Pies etc. If the UK leaves the EU without a withdrawal agreement, then those geographic indications will continue to be protected in the UK and the UK government believes that UK GIs will also be protected in the EU under the current EU GI scheme.
However, no formal guarantee or reassurance has been provided that this is the case and the UK Government has suggested the organisations seek to register trade marks to protect these indications. The UK government has also indicated that it will replicate the European GI scheme with a UK based scheme.
Copyright will continue to be protected as previously for most copyright protected works. Copyright exists in the UK via domestic legislation and is protected internationally via international treaties outside of the EU, including the Berne Convention.
There are some EU-derived copyright rules which may be lost in the event of a no deal Brexit.
For instance, database rights may no longer be enforceable by UK database right holders in the European Economic Area. However, of all the intellectual property rights, copyright is the one which is likely to see the least disruption.
The Unified Patent Court (UPC) has not yet come into force, as it is awaiting ratification by Germany.
Although the UPC is not an EU body, it is subject to the primacy of European law and has a close connection with the EU. The UK government has not yet indicated whether or not it will be possible to remain within the UPC structures in the event of a no deal departure. The UK government has said that it is “exploring” whether or not this is possible.
If the UK does withdraw from the UPC (or is forced to), then as with trademarks and registered designs, businesses who wish to protect patents across the EU and UK, will need to file two applications and will hold two separate rights.
The impact of a no deal Brexit on the holders of intellectual property rights is unlikely to be catastrophic, and other issues are likely to be much more disruptive.
The UK government has given reassurance that EU rights will be replicated in the UK. For most rights in the remainder of the EU establishment in an EU member state is not required to hold the relevant rights.
The cost of ceasing to be a party to European harmonised intellectual property structures, is more likely to arise over the long term as businesses wishing to protect within the UK and the EU will be subject to two different regimes.
If there is a withdrawal agreement with the EU which the UK Government remains confident of achieving, then there will at least be a 21 month period to prepare for any necessary changes.
Guy Wilmot is a partner in the corporate and commercial team at Russell-Cooke.
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