In preparation of Brexit, the European Commission published its Draft Withdrawal Agreement on 28 February 2018, which sets out the arrangements for the withdrawal of the United Kingdom (UK) and Northern Ireland from the European Union (EU). Title IV of the Withdrawal Agreement is in Articles 50 to 57 suggesting a framework for continued protection of intellectual property in the United Kingdom after Brexit.

The suggested provisions on intellectual property are preserving the interest of the industry in maintaining legal positions obtained by registered or granted EU rights. Holders of European trademarks, community designs and community plant varieties, registered or granted before the end of the transmission period (31 December 2020),shall become the holder of a comparable registered and enforceable intellectual property right in the UK. Such right is to be obtained automatically without re-examination, providing the priority of the Community right to be free of charge for the holder. Continued protection of European intellectual property rights in the UK and maintaining priority of such rights is/and was an important demand of the European IP community. An automatism providing that holders of European intellectual property rights obtain equal protection under a UK national right would ensure obtained legal positions in the respective rights and avoid cost intense Brexit filings. Whether the Commission will prevail with its demand that trademarks are not liable to revocation because the EU trademark had not been put into genuine use in the UK is to be seen.

The EC's position however becomes clear: robust protection for EU granted intellectual property in the UK after Brexit. Therefore, the draft agreement also ensures that trademarks having a reputation in the EU shall enjoy equivalent rights in the UK and that the UK shall ensure that international registrations designating the EU continue to have the protection in the UK. For registered designs and plant varieties the term of protection shall be at least equal to the remaining period of protection under EU law and the unregistered community design shall enjoy protection as an enforceable intellectual property right in the UK. The draft agreement also provides for continued protection of databases in the UK.

The draft is yet to be discussed with the EU Council and the Brexit Steering Group of EU Parliament level before transmission to the UK. Although not every aspect has been set out to the very last detail the suggested provisions on intellectual property are a solid point of departure for further discussions and negotiations.

Originally published March 13, 2018

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