European Union: Passage Of United Kingdom Referendum To Exit The European Union Not Expected To Immediately Affect Intellectual Property Rights

Although the people of the United Kingdom (UK) voted to leave the European Union (EU) on June 23, 2016 in what is popularly referred to as the BREXIT, it is not clear when the UK will formally initiate efforts to exit the EU. Procedurally, when the UK officially notifies the EU of its intention to leave, it must complete negotiations of the terms of its exit in the following two years. During that time EU legislation will remain in effect and no changes to any existing IP legislation are expected. In fact, with respect to Intellectual Property protection, not much change is expected in at least the next two years or more.

Patents

The UK is a member of the European Patent Convention (EPC), which is independent of the EU. Thus, even after the UK leaves the EU, the UK will continue to be available as a designated state in the European patent application and patent protection in the UK will still be possible via the national, European and international systems currently in place. For example, a timely filed PCT application will remain a vehicle for establishing the opportunity to apply for UK patent rights directly or through an EPC national stage designation based on the US filing date. However, the Unified Patent Court (UPC), which is designed to provide a single vehicle for enforcing patent rights in the EU, due to come into existence in the EU 2017, may now not cover the UK. Therefore, as is the case today, separate enforcement proceedings in the UK may likely continue to be necessary to enforce UK patent rights.

Trademarks

EU Trademarks remain valid in the UK. There will be no immediate loss of protection. After the UK is no longer a member of the EU, it may become necessary for Trademark owners to undertake conversion to maintain their rights in the UK depending on negotiations between the UK Intellectual Property Office and the EU Intellectual Property Office. Once the UK formally exits the EU, it is expected that new European Union Trade Marks (EUTMs) and Registered Community Designs (RCDs) will not extend to the UK. However, it will still be possible to obtain UK Trade Marks and UK Designs directly in the UK through the UK Intellectual Patent Office. It will also still be possible to seek trademark protection in the UK via International Registration under the Madrid Protocol, as the Madrid Protocol is independent of the EU.

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