UK: The Impact Of A Brexit On IP

Few European readers will have been able to avoid the news of the UK's upcoming referendum on its membership of the European Union. Due to be held on 23 June 2016, the UK public will vote on whether to remain a member of the EU or leave. 

In the event of a vote to leave the EU, it is expected that negotiations to reach a withdrawal agreement with the rest of the EU would take several years, and so there would be no immediate change to the legal framework for IP in the UK. However, in the longer term, there would be changes to certain aspects of the IP framework in the UK as a result of a British exit (commonly referred to as a "Brexit"). 

Membership of the European Patent Convention (EPC) is independent of the EU. Therefore, whatever the result of the referendum, the option will remain to apply for a European patent which has effect in the UK. As is currently the case, such a European Patent will, once granted, exist as a bundle of national rights that must be validated, renewed and enforced in each EPC country selected. UK national patents will also still be available. These are exactly the same options as are available today. Our UK offices will continue to enjoy the ability to represent our clients before the European Patent Office and patent prosecution would therefore be largely unaffected. 

Notwithstanding the above, a Brexit would have significant consequences for the proposed Unitary Patent and the corresponding Unified Patent Court. The Unitary Patent is a single right (yet to come into force) covering every EU country, except Spain and Poland. Benefits of the Unitary Patent include the reduced cost of patenting across many EU countries, and a single forum for litigation – the Unified Patent Court. We recently looked at the progress made to date on this project in another article.

Currently, the Unitary Patent and Unified Patent Court system cannot be implemented until the Agreement on a Unified Patent Court has been ratified by the UK, France and Germany, and at least ten other EU member states. The UK has not yet ratified the Agreement, and it is thought to be unlikely that it would do so in the event of a Brexit. This would prevent the Agreement in its current form from coming into force. This barrier to implementation is likely to be difficult to resolve and would at the very least cause a significant delay before the Unitary Patent and Unified Patent Court system could be implemented.

If the Unitary Patent and Unified Patent Court system is ultimately able to proceed without the UK, then the Unitary Patent would not extend to the UK and the Unified Patent Court would not have jurisdiction over UK patents. However, the option of a Unitary Patent would remain available to UK businesses desiring protection in the remaining contracting member states, and all European Patent Attorneys (including those based in the UK) would still be able to obtain Unitary Patents on behalf of their clients. As such, while the extent of the Unitary Patent would be affected the process of obtaining a Unitary Patent is likely to be unaffected. Meanwhile, patent protection in the UK would remain available in exactly the same way as today. 

Supplementary Protection Certificates (SPCs), which provide an extended protection for medicines following patent expiry to compensate for the lengthy market authorisation process, are governed by an EU Regulation (although the resulting SPCs are national, rather than EU-wide, rights). Outside of the EU, new legislation would be required to preserve existing UK SPC rights and enable new SPCs to be obtained in the UK. 

Unlike patents, it is already possible to obtain EU-wide trade mark and design protection by applying for EU Registered Trade Marks and European Community Registered Designs respectively. In the event of a UK decision to leave the EU, there would be no immediate change to these rights; the UK would remain a member of the EU during its withdrawal negotiations and these rights would continue to extend to the UK during this period. However, at the point of withdrawal, these rights would no longer automatically extend to the UK, although they would still be available to UK businesses if protection is required in the remaining EU member states. Businesses requiring protection for their trade marks and designs in the UK would have to seek national UK protection instead or in addition to EU protection. 

Whilst it is expected that part of the arrangements made in relation to a Brexit would include provision for any existing EU Trade Marks or Registered Designs to be converted to the equivalent national UK registered rights, it is too early to speculate as to how such a conversion process would work. However, whatever the details, it is reasonable to expect that rights holders would be given an appropriate period of time to take any necessary action.

A further consequence of a Brexit is that UK courts would no longer have jurisdiction to grant EU-wide injunctions, such that separate proceedings would need to be taken in the courts of another EU country if such an EU-wide order is required. On the other hand, an EU-wide injunction granted by the court of another EU country would no longer extend to the UK.

While the UK is a member of the EU, UK businesses are entitled to secure international design registrations under the Hague Design system. Unless the UK joins this system in its own right, UK businesses would no longer be able to benefit from Hague designs following a Brexit. The continued validity of any international design registrations secured under the system would also need to be considered.

A further consequence of a Brexit may be that UK businesses may no longer be able to engage in parallel importing (ie purchasing genuine branded goods in another EU country and selling such goods in the UK at a lower price than those sold by the authorised UK distributor). The sale of these goods purchased lawfully in another EU country may amount to trade mark or registered design infringement if then exported to and sold in the UK.

Unregistered rights would also be affected. Following a Brexit, UK businesses would no longer be entitled to rely on unregistered Community design rights, which differ from UK unregistered designs. It is foreseeable that a Brexit would prompt an overhaul of UK unregistered design law, with a view to providing a right that sits somewhere between current UK unregistered design right and unregistered Community design rights.

In the longer term, it is likely that UK trade mark, design and patent law will start to diverge from EU law, since the UK courts will no longer be bound by decisions issued by the Court of Justice of the European Union. At present, UK national laws are relatively consistent with the laws of all other EU countries as part of a process of harmonisation that has taken place over the last 25 years. 

Like many other areas of law, IP rights would be significantly impacted by the UK's exit from the EU. Although difficult to speculate about how IP law would look after exit negotiations have been completed, we expect that industry and the legal profession will carefully scrutinise arrangements to ensure that IP owners are not unnecessarily disadvantaged by a 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.

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.

In association with
Related Video
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.