IP Implications Following Brexit

Unless you have been living in a vacuum you will be aware that on 23 June, the UK voted to leave the European Union (Brexit). This decision will have a significant impact on the intellectual property rights governed by the many EU Regulations and Directives that intricately bind the UK to the EU.  However, for now it is only possible to speculate what that impact may be so what is set out below is very much a 'finger in the wind'.

The UK government has two years to negotiate its withdrawal from the EU and until then it will remain an EU Member State with EU Regulations and Directives still binding on it.

Given the vast task of unpicking the UK's membership of the EU, both legally and culturally, it is unlikely that intellectual property will be high on the agenda when negotiations regarding the disentanglement get underway. However, changes are bound to flow and it will be a long time before there is any certainty as to the full repercussions of Brexit on intellectual property.

European Trade Marks and Community Designs

Holders of European Union Trade Marks (EUTM's) and Registered Community Designs (RCD's) are protected as normal until such time as the UK formally and legally leaves the EU. However, both EUTM's and RCD's will (likely) cease to have effect in the UK following the withdrawal on the basis that they give coverage in the EU which post-Brexit the UK will not be a member of.

Following the legal Brexit, provided that no alternative agreement is reached during negotiations, owners of EUTM's and RCD's will need to, if they have not already done so, obtain a national UK right, in order to benefit from registered protection in the UK.

Alternatively, some form of mechanism may be introduced to allow EUTM and RCD rights to be converted into corresponding UK national rights which will ensure continuity of protection in both the UK and EU. It is possible that if this approach is adopted additional fees will need to be paid. Whether this process will be automatic is also not known.

Patents

The UK may no longer become part of the new Unitary Patent and Unified Patent Court regime, which was expected to come into effect in 2017. The Brexit vote does not necessarily mean the end for the Unified Patent Court – supposedly the biggest reform in the history of European patent law – but it may lead to changes to its introduction and how the UK is bound, or otherwise, by it.

What can be said is that the UK was supposed to play a vital role in this project, which included hosting a branch of the court's central division in London and being one of the three states to ratify the underlying agreement. The result of Brexit will likely cause a significant delay to the implementation as discussions regarding this will be necessitated as a result. Should the court still become a reality its attractiveness will be somewhat reduced without participation of UK.

Copyright

Copyright is subject to domestic legislation and so, whilst harmonised by EU legislation, should not suffer too much of a change post-Brexit.

Conclusion

The result of the vote does not mean a sudden change to IP owner's rights. As with everything Brexit related at the moment, IP rights holders do not have to worry about continuing protection immediately post-referendum as nothing has legally changed and the present laws and right will continue in the foreseeable future. However, the extent of coverage IP rights holders will enjoy following formal Brexit and the future of the Unified Patent Court is yet to be decided. We will keep you posted.

If you have any questions on this article or any issues relating to intellectual property generally, please do not hesitate to contact the team at McDaniel & Co. on 0191 281 4000 or legal@mcdanielslaw.com