Mark Elmslie, Partner at Hewitsons, offers a quick guide to the status of intellectual property (IP) law post-Brexit.
The effect of Brexit – intellectual property law
In the United Kingdom, the law governing registered intellectual property rights is largely, though not exclusively, governed by EU directives and regulations, covering areas from database rights through patents, designs, copyright, trade marks and the regulation of parallel imports and seizure of infringing goods at borders, as well as allied areas such as biotech.
Although our laws in this field are largely European or based on European directives the vote to leave the EU has changed nothing immediately. In the long and complex unravelling process there will be no legal vacuum, and there may not even be a need to create new or different laws to the present regime, which is in any event significantly influenced by English law and jurisprudence.
The one exception to the ‘steady as she goes’ approach is the proposed new Unitary Patent and the Unified Patent Court (UPC), which is a new EU right on the verge of being introduced. Until now, it has not been possible to obtain a patent covering the whole of the European Union; the ‘European Patent’ being a bundle of separate national rights which can apply in various EU and non EU countries, and which are obtained via a process started at the European Patent Office which, despite its name, is not an EU institution. The Unitary Patent is a bold new patent right which, when in place, will enable the rights holder to cover up to all of the countries in the European Union with one patent, enforceable in special courts situated in various EU countries. The UK was deeply involved in this process and had secured approval for location in London of one of these courts. It is hard to see how the UK could still participate in this process if it is not a member state of the Union, although there is much speculation and thought going into how this could be achieved. As yet, there is no answer to this question, and we await further developments.
As to other main registered IP rights, here is a quick guide to their status post-Brexit:
These are either UK or European patents. As explained above, the European Patent Office is not an EU body and the European Patent is a right applying in individual nominated countries. These rights are not affected.
Registered Trade Marks in force in the UK are granted by either the European Union Intellectual Property Office (EUIPO) or the UK equivalent. UK trade marks will of course be unaffected, and for the present the same goes for EU marks. During the process of leaving the EU there will have to be some kind of transitional arrangement agreed for these rights which will result either in their automatic application in the UK, or the loss of rights and the need to re-apply. We do not yet know enough about how Brexit will be managed to make any further comment. Given the present uncertainty as to how the transitional provisions will ultimately apply, if a UK business has EU but not UK rights it should consider whether to apply for additional UK protection for existing rights. For new applications it should consider whether to make a separate UK filing. This should be done in consultation with Trade Mark Attorneys.
As with Registered Trade Marks, Registered Designs may be protected via UK national or EU applications, and there are likely to be transitional provisions negotiated as part of Brexit in relation to EU registered design rights. If a design owner has EU but not UK protection or is making new applications the same considerations apply and it should consult with its patent and trade mark attorneys.
In summary, the current position remains as it was in relation to your registered rights. Time will tell how European intellectual property rights will be dealt with but, for the moment, there are no immediate changes. It would be prudent however for any business which owns or wants to own registered rights to check with its trade mark and patent attorneys as to whether any particular step is advisable.
For more information please contact Mark Elmslie on 01223 532720 or click here to email Mark.
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