Despite a number of experts stating that the intellectual property (IP) rights at present sanctioned by the EU Intellectual Property Office with effect in the UK would almost certainly be unaffected by the British Brexit it seems that far from being impervious to the consequences of Brexit there is the potential for far-reaching and an entirely unwelcome impact on the UK.
The European Commission's recent communication outlines the changes most likely to follow after the withdrawal date, the most stringent of which are as follows:
- All existing EU trademarks and registered designs in accordance with Union law (Regulation (EU) 2017/1001 on the European Union trade mark and Reguation (EC) No. 6/2002 on the Community designs 4) as well as unregistered Community designs made available to the public in the manner provided for in Union law (Regulation (EC) No. 6/2002) before the withdrawal date will continue to be valid in the EU 27 Member States but will no longer be effective in the United Kingdom as from 30 March 2019 (the currently projected "withdrawal date").
- All existing seniority claims in the EU trademarks based on national trade mark rights in the United Kingdom will cease to have an effect in the EU as from the withdrawal date.
- The holders of international registrations of trademarks and designs having designated the European Union before the withdrawal date pursuant to the Madrid system for the international registration of marks, and the Hague systems for the international deposit of industrial designs, should consider that, as from that date, those international registrations will continue to be valid in the EU 27 Member States only and thus will no longer have effect in the United Kingdom.
- Natural or legal persons that are domiciled or have a presence in the United Kingdom will have to be represented before the European Union Intellectual Property Office in accordance with Article 120 (1) of Regulation (EU) 2017/1001 (the European trademark) and Article 78(1) of the Regulation (EC) No. 6/2002 (on Community designs) in all proceedings provided for in those two Regulations, other than the filing of an application for an EU trademark or an application for the registered Community design. Therefore, UK representative will no longer be authorised to present to the EUIPO and UK companies will need to act through EU representatives, other than for filing applications.
The intellectual property of a business forms one of its most valuable intangible assets and should be protected at all costs; particularly so as the intangible rights of a business are gaining in value and forming a significant part of the business assets. If no agreement is reached to specifically enshrine the UK IP rights currently under the protection of the Community, which will depend on the final withdrawal agreement, UK legislation may have to be called on to assist in protecting these important rights.
It is to be hoped that an orderly exit would include some provision for the considerable number of UK companies that rely on the protection afforded by the European Intellectual Property Office. It would be wise to put in place some protective action in good time as, if the UK does not receive any consideration in this respect there will be an almighty rush by businesses to ensure that they are protected which will almost certainly result in a long queue and the potential for the risk of exposure allowing rivals to step in and register the asset as theirs.
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