European Union: Intellectual Property Rights Post Brexit – A Call To Arms

Last Updated: 8 January 2018
Article by Robert Buchan
Most Read Contributor in UK, September 2018

Intellectual Property Rights (IP) are often the most valuable assets owned and commercialised by businesses, whether in the form of product designs, software or brand names. For decades the UK has played a leading role in developing and unifying IP protection across the EU, benefitting both businesses and consumers.

Importance of IP to the UK economy

The UK has a globally recognised reputation as a country which provides strong protection for IP businesses in all sectors key to the UK economy such as IT, life sciences, pharma, fashion and industrial design. This includes in all areas of protection/registration of rights, enforcement against infringers and commercialisation.

IP post-Brexit?

Post the Brexit referendum vote and the UK’s decision to leave the EU, IP owners and IP advisors have been considering the potential implications of Brexit on IP in the UK. At present it very much remains business as usual for all IP owners and businesses, but in order to facilitate the UK remaining a strong protector and provider of IP, it is recognised that there needs to be negotiation and agreement between the UK and other member states on a large number of IP topics.

An IP call to arms by the UK Government

At the end of last year, the Law Society of England and Wales submitted a note to various UK government officials and departments, including the Department for Exiting the EU, setting a short list of the most important IP areas that the UK government should support and seek to negotiate as a priority to ensure consistency and certainty for IP owners in the UK.

The note is a collaboration of many leading UK IP representative bodies and hopefully will be given weight by those involved in Brexit negotiations. Whilst the note recognises that there may need to be a transitional period of “several years” to conclude negotiations with the rest of the EU, it also stresses that negotiations should begin and not be held up pending other Brexit negotiations.

Key recommendations

A summary of the key “biggest areas” recommendations are :-

  1. Continuation of EU-derived IP rights – These include EU trade marks, registered and unregistered Community designs and protections of geographical indications. The government is encouraged to negotiate a package of rights to secure the continuation of all existing pan EU rights and defences to them, even when the UK is no longer a member of the EU. If that is not possible then alternatively the UK should legislate for the automatic continuation in the UK of EU rights.
  2. Unitary Patent/Unified Patent Court (UPC) – After over 40 years of negotiation we were close to establishing an EU wide patent which could be enforced across the EU rather than on a country by country basis. At present only EU member states can participate and so the note wants to ensure that the UK and UK businesses can still participate and benefit. It asks the government to confirm the UK intends to participate in the UPC, work towards implementing the UPC as soon as possible and to remove any obstacles to the UK participating post Brexit.
  3. Clarify exhaustion of rights – to provide certainty for businesses and consumers industry needs to know what exhaustion rules will apply post-Brexit to goods first placed on the market in the UK, EU, EEA or internationally.
  4. Rights of representation – to allow the UK to retain its position as a leading protector of IP, the government is asked to prioritise continued rights of representation of IP professionals based in the UK across all relevant EU IP forums.
  5. Mutual recognition of Judgments – as some businesses have expressed concern about the ability to enforce UK judgements in the EU post-Brexit, the government is asked to negotiate arrangements with the EU that provide the fullest assurance that longstanding agreements for EU recognition and enforcement of judgments remain in place.

These recommendations are indeed key, but only the tip of the iceberg for IP and of course form only one part of the wider Brexit negotiations. It is hoped that this IP industry wide approach will be seriously considered by the UK government and form a prioritised IP shopping list. As ever with Brexit it is important for IP owners, businesses and their advisors to keep a close eye on developments to be able to best protect and exploit valuable IP both in the UK and EU post-Brexit.

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.

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