Brexit: what does the draft withdrawal agreement mean for IP?

4/12/2018

A further step towards a withdrawal agreement between the UK and EU27 occurred on 14 November 2018 with the publication of the fully negotiated version of the draft withdrawal agreement by the European Commission.

Robert Watson of Mewburn Ellis comments:

Also published is a document setting out the intended future economic and security relationship.

 In order for the withdrawal agreement to come into force, it will need to be approved by:

  • The EU Council, which comprises of the heads of the EU27 governments
  • The UK Parliament
  • The EU Parliament

This certainly won’t be a straightforward process, and it is possible that further amendments can be made to the draft agreement if issues arise during the approval process.

 The text on intellectual property (IP) appears to be almost identical to the previous version published on 19 March 2018.

Key points are:

  • The agreement provides for a transition period until the end of 2020, during which period the UK will remain within the EU systems, such as EUTM and RCD systems

  • Holders of EU Trade Marks (EUTMs), Registered Community Designs (RCDs), Community Plant Variety Rights (CPVRs) at the end of the transition period will be given a fully equivalent UK right at no official cost
    • If the EU right is subsequently revoked due to a procedure which is pending at the end of the transition period, then the equivalent UK right will also be revoked (as long as the grounds for revocation apply in the UK)
    • A UK address for service will not be required for the equivalent UK right for at least three years after the end of the transition period (this is a minor change to the previous version)
  • Holders of EU Geographical Indications (GIs) will be given an equivalent UK GI right
  • The UK must take steps to ensure continued protection of Madrid (International Trade Mark) and Hague (International Design) registrations that cover the EU

  • Holders of Unregistered Community Designs will become the holder of an equivalent unregistered right in the UK

  • Applicants for EUTMs, RCDs and CPVRs that are pending at the end of the transition period will have 9 months to reapply for the equivalent UK rights

  • Pending applications for Supplementary Protection Certificates (SPCs), which are based on an EU regulation, will continue and can be granted after the end of the transition period

  • IP rights that were exhausted in the UK and EU before the end of the transition period will remain exhausted both in the UK and EU

These can be read alongside the UK government’s plans for the IP system in the event of a no-deal, as these have been designed to be transferable to a situation where the anticipated withdrawal agreement was finalised.

The document on the intended future economic relationship contains a single point on Intellectual Property: “Protection and enforcement of intellectual property rights beyond multilateral treaties to stimulate innovation, creativity and economic activity”. The meaning of this point is not clear, but could refer to retaining the UK in the Unitary Patent Court (‘enforcement beyond multilateral treaties’) and extending the reach of the EUIPO post-Brexit to the UK (‘protection beyond multilateral treaties’). This will be something to watch closely.

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Mewburn Ellis LLP

Located on Cambridge Business Park, our Cambridge office serves clients from Cambridge and around the world. We cover the full range of intellectual property issues: patents, trade marks, designs, industrial copyright and related matters, in all fields of technology.

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