Brexit and Intellectual Property
Now that the Parliament has rejected the Government’s Withdrawal Agreement, it is not clear whether the UK Government will strike a deal with the European Union before the United Kingdom leaves the European Union.
However, the provisions on intellectual property do not seem to have caused controversy and we have therefore set out how intellectual property will be affected post Brexit under the terms of the Withdrawal Agreement and if there is no deal.
Registered Design Rights and Trademarks
The system of UK Trade Marks is largely unaffected by Brexit. However, EU Trade Marks and Registered Community Design Rights are granted by the European Intellectual Property Office giving protection to the right holder across the European Union. Whilst the UK is a member of the European Union protection will be in place in the UK for these rights, but once the United Kingdom leaves the European Union, ongoing protection in the UK will have to be provided for separately.
If the UK leaves under the terms set out in the Withdrawal Agreement then rights holders with European Union Trade Marks and Registered Community Designs will have a new equivalent right granted to them when Brexit takes place and enjoy continued protection. This process will be automatic and free of charge.
The renewed UK Trade Mark or Registered Design will have the same filing date and date of priority as the European right from which it originates. For UK Registered Design Rights, the term of protection granted in the UK will be at least as long as the period of protection remaining under Union law. UK Trade Mark rights granted in this way will not be subject to revocation on the basis there was no genuine use of it in the UK before the end of the transition period.
Once equivalent rights has been granted under UK law, they will be subject to renewal and enforcement under UK law and the first renewal date will be the renewal date of the right registered in accordance with European Union law.
Going forward, following the end of the transition period two separate applications will be required to ensure rights across the European Union and the United Kingdom.
Government says that equivalent rights will be granted in a no deal situation too, to come into force upon exit with a minimal administrative burden for the rights holder. The UK Government is looking at various options to achieve this.
Whether or not there is a deal, if you have a EU Trade Mark or Community Design application which is ongoing at the date of exit, you will have a 9 month priority period to re-file it in the UK to obtain the same date of priority as for the European Trade Mark or Community Design application. You will need to meet the costs of this under the UK fee application structure.
If you licence these rights, you should consider relevant contracts and decide whether they need to be updated, for example, to amend what is licensed (now there are two rights capable of individual assignment and licensing) and to clarify whether the UK is to remain as part of the licensed territory.
Unregistered Design Rights
Unregistered Community Design Rights protects two and three dimensional designs from copying for 3 years across the European Union under current law if the requirements are met. Once the UK leaves the European Union, this protection will not extend to the UK (although UK Unregistered Design Right will continue to apply).
The impact of a deal or no deal situation is similar for this right. Under the Withdrawal Agreement, the UK Government would provide a UK automatic equivalent right for rights holders with rights that arose before the end of the transition period. This equivalent right would give the same term of protection that would have remained under the corresponding Community Unregistered Design Right. If no deal is reached, the UK Government states that post-Brexit it will establish a new equivalent right in the UK to ensure ongoing protection
UK Unregistered Design Right, which offers similar but not equivalent protection to Community Unregistered Design, will not be affected.
UK and European patents are unaffected by Brexit because their grant and enforcement is largely independent of the European Union. However, there are plans within the European Union to introduce changes to patent law, which would introduce a new European Unitary Patent and a Unified Patent Court, which would make centralised enforcement possible. The UK Government said it intended to be part of the Unified Patent Court post Brexit. However, it is unclear how this would happen in the event of a no-deal Brexit. If the Unified Patent Court does come into force but the UK is not part of it, then businesses will not be able to use the Unitary Patent or Unified Patent Court to enforce their patents in the UK and will have to apply for protection under the UK and European regime separately.
Protection for UK copyright works will remain unchanged post-Brexit and the Withdrawal Act 2018 will ensure that EU legislation in this area continues to have effect in the UK.
That said, EU law provides a number cross border copyright mechanisms, the reciprocal elements of which will cease to apply to the UK once it leaves the European Union. This will have a number of implications, for example, there will be no obligation for EEA states to provide database rights to UK nationals, residents and business and UK owners of such rights may find their rights are unenforceable in the EEA. If this affects you, consider whether there are other ways to protect your rights.
More generally, post Brexit the UK may take the opportunity to modify parts of EU law and will depart from it over time. For example, the Software and Information Society Directives on the horizon for the European Union will not take effect in the United Kingdom post Brexit and it is possible that the UK could take the opportunity to modify the protection of IP in software and address some of the contentious issues that have arisen in this area.
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