European Union: Effect Of 'Brexit' On Intellectual Property Rights

Last Updated: 4 July 2016
Article by Vikrant Rana

The UK electorate addressed the question of withdrawal from the European Union on June 23, 2016 in a referendum that was arranged by the Parliament, by the passage of the European Union Referendum Act, 2015. The Act provided for a consultative referendum in the United Kingdom and Gibraltar no later than December 30, 2017, and on February 20, 2016, Prime Minister David Cameron announced that the date for holding the referendum will be Thursday, June 23, 2016.

Brexit, a portmanteau of the words British and Exit, was a political goal that has been pursued by various political parties, and advocacy groups, since the time the UK joined the European Economic Community (ECC), a precursor of the European Union back in 1973. The result of the same referendum was 51.9 % in support of an exit and 48.1 % to remain with a total turnout of 72.2 % of the entire electorate. Provision for withdrawal from the European Union is a right of each member states under Article 50 of the Treaty on European Union (hereinafter referred to as the Treaty). Clause 1 of the said Article states that, "any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements."

The decision to withdraw from the Union will have a significant effect in world economy, and the news is poised to dominate prime-time television throughout the world for the entire week, much because of the fact that the referendum is just a vote of intention among the people of the United Kingdom, and the actual exit process will now have to be negotiated. The time limit prescribed for the exit is a maximum period of 2 years, post notification by the UK government, according to clause 3 of Article 50 of the Treaty, which states that, "The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period." Thus, the actual exit date is still tentative, and is not expected to be announced formally before 2018.

Since, the exact fate of the exit is very much dependent on subsequent negotiations, let us have a look at the possible implications it might have on Intellectual Property Rights in the United Kingdom.

Registered Community Designs

The European Union's Council Regulation (EC) No. 6 / 2002 of 12 December, 2001 on community designs provides for "a unified system for obtaining a Community design to which uniform protection is given with uniform effect throughout the entire territory of the Community". The term "community" used therein refers to all the member states of the European Union, and the scope of the regulation extends only to such member states. After the vote for Brexit, it will no longer be a part of the Registered Community Designs (RCD) system once such severance comes into effect.

Post-Brexit, if an applicant seeks to obtain Europe-wide design protection, he will have to file a separate national application in the UK to secure protection, thereby incurring additional costs. This will in turn lead to an increase in the number of design applications to be dealt with by the UK Intellectual Property Office, which may cause administrative difficulties and delays. Further, there will be uncertainty with regard to community design registrations obtained prior to Brexit. If the geographical scope of such registrations is reduced (elimination of rights in UK), the commercial value of the right will diminish as UK is an important market.

In terms of enforcement, UK courts will not be able to grant EU-wide injunctions in respect of EU-wide rights, while EU-wide injunctions granted by other European jurisdictions will not cover the UK. Separate injunctions will have to be obtained to enforce rights in the UK.

Patents and Supplementary Protection System

The European Patent Office (EPO) has been established under the European Patent Convention (EPC). The EPC is not an organ of the European Union (unlike the EU IPO), and its contracting states include nations which are not members of the EU, like Switzerland and Turkey. Therefore, Brexit will not have any effect on the patent system of the EPO, and applicants will still be able to make one central application to the EPO, and secure grant of patent in different nations chosen, including the UK. Existing UK patents obtained under the EPO will also remain in force.

European Union's Regulation (EC) No. 469/2009 pertains to Supplementary Protection Certificates (hereinafter referred to as 'SPC') for medicinal products. Post-Brexit, this regulation will cease to have effect in the UK, and there will be a need to preserve its provisions through national legislation. An option will be to re-enact the regulation as UK law, but there might be a debate as to whether SPCs should be retained at all, since they extend the period of protection of certain patents after their expiry, by upto 5 years. A policy decision will have to be taken by UK as to whether the regulation is to be adopted, modified or done away with. It will be an opportunity for the UK to fine-tune the law on SPCs in accordance with its own requirements.

Unitary Patent Scheme

The UK's participation in Unitary Patent Scheme (hereinafter referred to as the 'UPS') is still in question. EU will decide the status of UK in UPS, during the negotiation period. UK is still a member of European Patent Convention (EPC) and will continue to be one. The Unitary Patent will weaken because one of the major European economies will not be covered in it. But it will still be possible to obtain UK patent protection via European Patents granted under European Patent Convention.

The European Patent matters relating to UK will now be litigated in UK courts and not in new Unified Patent Court. UK while being a member of EU, had consolidated UK Patents Act with EU directives like, Biotech Directive and the Bolar Directive, but the same is not expected to be repealed merely due to Brexit.

EU Trade Mark

The system is governed by EU legislation and it provides protection to European Union Trademarks throughout the member countries of EU. Now after Brexit, the existing EUTM's will lose protection in UK, necessitating the holder to file a fresh application in UK Intellectual property Office. It is expected that a transitional provisional will be implemented so as to allow the EUTM holders to obtain registration in UK.

The EUTM which were protected only on the basis of use in UK will now become vulnerable and shall be liable to revocation on the ground of non-use until they are put into use in any of the member countries. The EUTM holder might face the issue of genuine use. From now on, demonstrating genuine use only in UK will no longer be a sufficient ground of registration in EU. The licensing and assignment agreements will be affected. Such future contracts will need special care regarding its implementation in EU and UK jurisdiction.

UK might adopt the "Norway model" as an option through which the UK would become a member of the European Economic Area and European Free Trade Association.


Separation of UK from EU will not be an easy task, as EU legislations and guidelines are so interconnected with UK laws that unravelling one from the other would likely be an arduous task. Brexit may be beneficial to UK, as it will provide opportunity for UK laws to deviate from EU guidelines. It can be a welcoming step in certain areas, but it does not seem to be true in the case of IP laws, as it will narrow down the territory of IP protection and may lead to the increased cost of protection.

After Brexit, UK will not have any influence on EU policies, which may diminish the prosperity of Intellectual Property for companies operating in UK.

Since, the Treaty of the European Union provides for a period of 2 years before the actual implementation of Brexit, hence the real impact of Brexit is still unclear and it is advised that, the IP owners should identify the potential changes in their rights and start planning to deal with those changes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Vikrant Rana
In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.