What does Brexit mean for registered IP rights?

November 7, 2016

In the aftermath of Brexit it’s becoming clear that Article 50 may be triggered and a transitional period may be upon us. But what does this mean for intellectual property law?

During the period of negotiations, which will last at least two years, EU law will still be applicable to the UK. However, if we finally withdraw changes to the law will be certain but we are of course not sure what changes to expect in the area of intellectual property legislation. Although we can only speculate at the moment, it is likely that rights holders will have to pay more to protect trade marks or designs throughout Europe including the UK as they may cease to benefit from the Community trade mark or design right systems, which currently allow EU wide registration with one application. The following gives you a short overview of the effect Brexit might have on rights holders for various registered IP rights.

Patents
Regardless of Brexit, the UK’s role in the European Patent system is not affected as it operates independently from the EU.
However Britain’s leaving of the EU means we may not take part in the new ‘unitary patent’, officially know as European Patent with Unitary Effect (EPUE). The unitary patent is designed to harmonise patent protection throughout all EU member states (with the exceptions of Spain and Croatia). It would include a new system of courts, which will enforce the new patent. Currently, the unitary patent is scheduled to take effect from 2017. The UK is still involved in meetings but currently it is even unclear if the new patent system can be implemented in the remaining member states without the involvement of the UK.

Trade marks
As for trade mark protection, again at least for now nothing is set to change. Trade marks can be registered at national or EU level but following the referendum result the UK may no longer be a member of the EU Single Market. During the transitional period it is expected that measures will be taken for companies to convert their EU registrations to a EU or UK only registration, which means that in the future, business who want protection for both territories have to register separately in the UK and EU. However this is merely one option. Until then any existing EU TM’s will continue to apply in all current member states.

Design
This is probably the most immediate concern for businesses. Registered Community Design (RCD) offers protection across all member states including the UK but exiting the EU may mean that rights holder have to register Community Designs and UK Designs separately. The likelihood is that there will be transitional arrangements made for RCD holders, which will soften the impact. Much like everything else protection under the current system continues for already registered community designs until some sort of agreement is negotiated.

Going Forward
You may consider the following in this time of uncertainty:
  • As mentioned above, Community design rights or EU Trade Marks may no longer cover the UK so if Britain is an important market for your business then it would be sensible to register a UK trade mark or design separately from a Community Design or EU Trade Mark.
  • However if you have already registered you may rely on transitional provisions , which are likely to state that your Community Registered Designs or EU Trade Marks will be valid throughout the EU (including the UK) for a time after exit yet to be determined.
  • The current patent system will not be affected.

A Note on Unregistered Community Design Rights
For the time being, EU wide unregistered design rights will be valid as before (three years from the date of first making your new design available to the public) but once the UK exits the EU, the system may change and new legislation will need to be enacted to determine protection of unregistered design rights throughout Europe. It is therefore advisable to register rights in Europe if this is your main market.

If you have any questions or need legal advice in any matter raised in the article, please contact the office on +44 20 3701 7395 or email Joanna Stephenson at Joanna.stephenson@jwssllp.com

Articles are for general guidance only and discuss the legal position in the UK at the time of publication unless stated otherwise. You must take legal advice and not rely on the information provided in our articles before taking action. We do not update our articles and therefore, past articles may not reflect the current legal position. Where we refer to Court decisions facts are stated as reported by the Court.