Brexit and your UK and European IP rights
Article written by: Chris Way, Monday 27th June 2016
On Thursday last week the United Kingdom (UK) voted to leave the European Union (EU). The result will be a period of legal uncertainty about Intellectual Property (IP) rights, however there is a period of two years (at least) during which the status quo will hold and negotiations on the “Brexit” terms will proceed. While there is no need to rush into any decisions about your European and UK IP rights, you should think strategically about how best to ensure IP rights are protected in the future as a result of those uncertainties.
The following is a short summary of the potential impact of the Brexit on your IP rights in the UK and Europe. We will provide further information about these and other issues that could arise in the future.
There will be no immediate impact on European patent holders. The European Patent Convention is independent of the EU, and a European patent can include a number of countries which are not part of the EU, such as Norway and Switzerland. However, if you are considering applying for a European patent, a precautionary UK application in addition to the European application is also something to be considered.
The EU has been moving towards the establishment of a Unitary Patent and a Unified Patent Court system. This was scheduled for 2017 but may now be delayed. It may be possible for the Unitary Patent system to be implemented on schedule with the UK’s continued involvement prior to its actual exit from the EU. However, the UK is unlikely to be able to remain a member after exit, unless it can be negotiated as part of the exit. Another complication is that it is likely that the London branch of the Unified Patent Court will be moved, which could involve some squabbling between the remaining members of the EU.
The UK is a contracting state of the European Patent Office and therefore European patent attorneys based in the UK will continue to have the right to represent clients before the European Patent Office.
Registered Trade Marks and Registered Designs
During the negotiation period, EU Registered Trade Marks and EU Registered Designs will still be able to be obtained and these will cover the UK. Once the UK has left the EU, any new European Registered Trade Marks and Registered Designs will not cover the UK. You will, of course, be able to obtain protection for your Trade Marks and Designs through the UK Intellectual Property Office. You will still be able to apply for EU Registered Trade Marks and Registered Designs to protect your IP in the other EU member states using established procedures.
It is envisaged that the UK will pass legislation enabling EU Registered Trade Marks and Registered Designs to have continued effect in the UK after it has left the EU. This may require you to take some action in order for your rights to have continued effect, and we will let you know immediately should this be required. Unfortunately, it is also possible that UK rights could be lost if that appropriate legislation is not put in place.
If you are considering applying for an EU Registered Trade Mark or an EU Registered Design, a precautionary UK application in addition to the European application is also something to be considered.
Copyright is a national right and therefore your current UK copyright rights will remain the same for at least the two year negotiation period. Copyright law in the UK is governed by the Copyright, Designs and Patents Act 1988 (CDPA). While this has been influenced by the UK's membership of the EU, leaving the EU will not have immediate impact without changes to the CDPA and to any related UK legislation.
This article is intended to summarise potentially complicated legal issues, and is not intended to be a substitute for individual legal advice. If you would like further information, please contact a Baldwins representative.